BHUBANESWAR DEVELOPMENT AUTHORITY versus MADHUMITA DAS AND ORS. on 2 May 2023

JUDGMENT

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DR. DHANANJAYA Y CHANDRACHUD, CJI

1. Leave granted.

2. This appeal arises from a judgment dated 30 October 2019 of aDivision Bench of the High Court of Orissa.

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3. On 17 October 1998, the first respondent joined the service ofthe appellant as a Junior Assistant against a post reserved for womenbelonging to the Scheduled Castes. In support of her plea of belonging toa Scheduled Caste, the first respondent submitted a caste certificatewhich was issued by the Tehsildar, Bhubaneswar. The caste certificatewas issued on 5 January 1996 in Miscellaneous Case No. 7/1996,mentioning that the first respondent belonged to a Scheduled Caste,“Dewar”.

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4. On 2 August 2011, the appellant requested the Sub-Collector,Khurda (the fourth respondent) to enquire into the veracity of the castecertificate on the ground that the high school certificate and provisional H

Amarks sheet of the first respondent at the 12[th] standard examinationrevealed that she was a Brahmin. On 3 August 2011, the Sub-Collectordirected an enquiry to verify the authenticity of the caste certificateissued to the first respondent.

5. On 5 August 2011, the Tehsildar (the second respondent) issuedBa notice to show cause to the first respondent after registering Rev.Misc. Case No. 47 of 2011. In her response dated 16 August 2011, thefirst respondent stated she was born into a Brahmin family. However,she claimed to have attained the status of a Scheduled Caste upon hermarriage on 21 July 1993 to a person belonging to a Scheduled Caste.C6. On 16 August 2011, the Tehsildar passed an order cancellingthe caste certificate of the first respondent under Rule 8(2) of the OrissaCaste Certificate (for Scheduled Castes and Scheduled Tribes) Rules,1980. Placing reliance on the decisions of this Court in Valsamma Paulv. Cochin University[1] and Anjan Kumar v. Union of India[2], theTehsildar rejected the submissions of the first respondent that as a resultDof marriage, she had become a member of a Scheduled Caste. TheTehsildar also relied on the directions of the Union Ministry of HomeAffairs dated 2 May 1975 stating that a person who is not a ScheduledCaste or Scheduled Tribe by birth will not be deemed to belong to thereserved community. Moreover, the Tehsildar noted that the husband ofEthe first respondent belonged to the “Kaibarta” caste, but the castecertificate of the first respondent showed her as belonging to the “Dewar”caste. Therefore, the Tehsildar observed that the first respondent hadmisled the authority at the time of the grant of the caste certificate.

7. Following the cancellation of the caste certificate, the appellantFcommenced disciplinary proceedings against the first respondent on 26August 2011 by issuing a memorandum of charges under the OrissaCivil Services (Classification, Control, and Appeal) Rules, 1962. Anenquiry officer was appointed to inquire into the charges against the firstrespondent. The first respondent was permitted to participate in theenquiry.G8. On 13 January 2012, the enquiry officer submitted the report, acopy of which was served on the first respondent in order to furnish anopportunity of submitting her representation on the findings. Thereafter, 1 (1996) 3 SCC 545H2 (2006) 3 SCC 257

the disciplinary authority proposed to dismiss the first respondent fromservice and recover the salary which was paid to her upon the findingsin the enquiry. A show cause notice was issued to the first respondent.

9. The first respondent challenged the order cancelling her castecertificate before the Collector, Khurda. By an order dated 23 March2012, the Collector rejected the appeal of the first respondent and upheldthe order of the Tehsildar dated 16 August 2011 cancelling her castecertificate.

10. On 13 March 2012, the appellant passed an order dismissingthe first respondent from service. The appellant also ordered recoveryof all the money received by the first respondent towards her salary andother perquisites during service. The first respondent challenged herdismissal before the High Court under Article 226 of the Constitution ofIndia.

11. By a judgment dated 25 January 2018, a Single Judge upheldthe cancellation of the caste certificate of the first respondent but directedthe appellant to consider her continuance in the post, inter alia, by relyingupon the decisions of this Court in Kavita Solunke v. State ofMaharashtra[3] and Shalini v. New English High School Association[4].The Single Judge observed that the first respondent did not obtain thecaste certificate fraudulently. Therefore, the court directed the appellantto consider her continuance in the post in the event that the post waslying vacant. In the event that the post was not vacant, the Single Judgedirected the appellant to consider her immediate absorption in a parallelpost. However, the Single Judge directed that if the first respondent isreinstated, she would be disentitled to any future promotions and benefits.

12. A writ appeal was filed against the order of the Single Judgewith a delay on five hundred and sixty-four days. The Division Bench byits impugned judgment dated 30 October 2019 declined to condone thedelay. The Court held that the reasons for delay provided by the appellantdid not constitute sufficient cause. Consequently, the writ appeal wasdismissed.

13. The first respondent has filed a counter-affidavit averring thatthe appellant failed to assign sufficient reason to account for the inordinatedelay of five hundred and sixty-four days. Moreover, the first respondent 3 (2012) 8 SCC 430

4 (2013) 16 SCC 526

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Aurged that the order of the Single Judge dated 25 January 2018 shouldnot be interfered with. It has been urged that the Single Judge did notdirect the appellant to compulsorily reinstate the first respondent, as wasdone in Kavita Solunke (supra) and Shalini (supra). Therefore, thedirections passed by the Single Judge are (according to the submission)

not based on the decisions of this Court in Kavita Solunke (supra) andBShalini (supra).

14. We have perused the reasons which were placed on the recordof the Division Bench for condoning the delay. The State had explainedin detail the steps which were taken to take necessary approvals for thepurpose of processing the writ appeal. Besides declining to condone theCdelay in this case would have serious consequences of allowing animposter to continue having the benefit of a reserved seat. This is notjust a matter of detriment to the state but to genuine aspirants to thereserved seat who would be ousted. We are of the considered view thatthe Division Bench ought to have condoned the delay in the facts of thisDcase.

15. The first respondent obtained employment with the appellantagainst a post which was reserved for the Scheduled Caste. She did soon the strength of a caste certificate. The caste certificate has beeninvalidated by the Tehsildar by relying upon the decisions of this Court inEValsamma Paul (supra) and Anjan Kumar (supra).

16. In Valsamma Paul (supra), the appellant belonged to a forwardcaste but claimed that she had become a member of the reservedcommunity by marriage. The appellant’s selection for the post of lectureras a reserved candidate was challenged by another candidate. TheFquestion before a two Judge Bench was whether a person of a forwardcaste becomes entitled to claim reservation under Articles 15(4) or 16(4)of the Constitution by marrying a person belonging to the reservedcommunity. This Court held that a person from a forward caste who istransplanted in the backward caste by adoption, marriage or conversionwill not be entitled to reservation:G

34. […] A candidate who had the advantageous start in life beingborn in Forward Caste and had march of advantageous life but istransplanted in Backward Caste by adoption or marriage orconversion, does not become eligible to the benefit of reservationeither under Article 15(4) or 16(4), as the case may be. Acquisition H

of the status of Scheduled Caste etc. by voluntary mobility intothese categories would play fraud on the Constitution, and wouldfrustrate the benign constitutional policy under Articles 15(4) and16(4) of the Constitution.

17. In Anjan Kumar (supra), the question before this Court waswhether a person born from a marriage between a tribal wife and a non-tribal husband could claim the status of Scheduled Tribe. This Court heldthat such a person cannot claim tribal status, unless they show that theyhave suffered social, economic, and educational disabilities. This Courtreferred to a catena of decisions, including Valsamma Paul (supra), toobserve that a condition precedent for granting a tribe certificate is thatone must suffer disabilities from where one belongs.

18. In the order dated 16 August 2011, the Tehsildar observedthat the first respondent did not claim that she suffered disability ordisadvantage as a result of her marriage. Therefore, the Tehsildar wascorrect in invalidating the caste certificate of the first respondent on theground that she did not belong to a Scheduled Caste by birth and hermarriage to a person belonging to a Scheduled Caste would not entitleher to the benefit of the reservation for persons belonging to the caste ofher spouse.

19. The Single Judge of the High Court directed the appellant toreconsider the claim of the first respondent for reinstatement on thebasis of the decisions of this Court in Kavita Solunke (supra) and Shalini(supra). However, both these decisions have been overruled by a largerBench of three Judges of this Court in Chairman and ManagingDirector, Food Corporation of India v. Jagdish Balaram Bahira.[5]

20. In Shalini (supra), a two Judge Bench of this Court relied onKavita Solunke (supra) to propound a test of dishonest intention forthe grant or denial of protection to persons whose caste claims havebeen invalidated. In Shalini (supra), this Court directed reinstatement ofthe individual whose caste certificate was found to be invalid becausethey did not intentionally falsify their caste certificate.

21. In Chairman and Managing Director, Food Corporationof India (supra), the issue before this Court was whether protectionshould be granted to individuals who secure access to reservation inspite of the fact that they do not belong to the reserved community. This A

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ACourt overruled Kavita Solunke (supra) and Shalini (supra) on theground that it would be contrary to the express provision of the law toimport the requirement of dishonest intention. This court held:

55. […] The intent of a candidate may be of relevance only ifthere is a prosecution for a criminal offence. However, where aBcivil consequence of withdrawing the benefits which have accruedon the basis of a false caste claim is in issue, it would be contraryto the legislative intent to import the requirement of a dishonestintent. In importing such a requirement, the Bench of two Judgesin Shalini [Shalini v. New English High School Assn., (2013)16 SCC 526 : (2014) 3 SCC (L&S) 265] has, with great respect,Cfallen into error. The judgment in Shalini [Shalini v. New EnglishHigh School Assn., (2013) 16 SCC 526 : (2014) 3 SCC (L&S)265] must, therefore, be held not to lay down the correct principle.In the very nature of things it would be casting an impossibleburden to delve into the mental processes of an applicant for aDcaste certificate. […]

This Court further held that granting protection to individuals whoare ineligible for the post has a deleterious effect on good governance asit: (i) allows an ineligible person to gain access to a scarce public resource(public employment); (ii) violates the rights of eligible persons; and (iii)Eperpetuates illegality by unduly bestowing benefits on an ineligible person.

22. The first respondent obtained employment against a postreserved for Scheduled Castes to which she was not entitled. The effectis to displace a genuine candidate, who would otherwise have been entitledto the post. No fault can be found with the conduct of the appellant inFconvening a disciplinary enquiry. The findings of the enquiry areunexceptionable. The punishment which was imposed could not beregarded as disproportionate. Irrespective of whether or not the casteclaim of the first respondent was fraudulent or otherwise, it is evidentthat the benefit which she obtained of securing employment against areserved post would have to be recalled once the caste claim has beenGrejected.

23. In view of the clear principle of law which was has beenformulated in the judgment of this Court in Chairman and ManagingDirector, Food Corporation of India (supra), we are of the view thatthe Single Judge of the High Court was in error in issuing a direction for H

reconsideration of the claim of the first respondent for reinstatement.

24. However, in the facts and circumstances of the case, weorder and direct that no recovery shall be made from the first respondentof the salary which was paid to her for the period for which she hasactually worked.

25. With the above reasons and subject to the aforesaid clarification,we allow the appeal and set aside the impugned judgment and order ofthe High Court dated 30 October 2019. In consequence, the judgment ofthe Single Judge shall also stand set aside. The writ petition instituted bythe first respondent shall stand dismissed.

26. Pending applications, if any, stand disposed of.

O R D E R

1. Leave granted.

2. This appeal arises from a judgment of a Division Bench of theHigh Court of Orissa dated 30 October 2019.

3. The first respondent joined the service of the appellant as aJunior Assistant against a post reserved for women belonging to ScheduledCastes category. In support of her plea of belonging to a ScheduledCaste, the first respondent submitted a caste certificate which was issuedby the Tehsildar, Bhubaneswar. The caste certificate was issued on 5January 1996.

4. A Miscellaneous Case No 7/1996 was filed mentioning that thefirst respondent belong to a Scheduled Caste, “Dewar”.

5. On 2 August 2011, the appellant requested the Sub-Collector,Khurda (the fourth respondent) to enquire into the veracity of the castecertificate on the ground that the high school certificate and provisionalmarks sheet of the first respondent and the 12[th] standard examinationreveal that she was a Brahmin.

6. The Tehsildar issued notice to show cause to the first respondentafter registering Rev. Misc. Case No 47 of 2011.

7. In her response dated 16 August 2011, the first respondentstated that she was born into a Brahmin family but claimed to haveattained the status of a Schedule Caste upon her marriage on 21 July1993 to a person belonging to a Scheduled Caste.

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A8. On 16 August 2011, the Tehsildar passed an order cancellingthe caste certificate of the first respondent under Rule 8(2) of the OrissaCaste Certificate (for Scheduled Castes and Scheduled Tribes) Rules,1980. Placing reliance on the decisions of this Court in Valsamma Paulvs Cochin University[6] and Anjan Kumar vs Union of India[7], theTehsildar rejected the submissions of the first respondent that as a resultBof marriage, she had become a member of a Schedule Caste. TheTehsildar also relied on the directions of the Union Ministry of HomeAffairs that a person who is not a Scheduled Caste or Schedule Tribe bybirth will not be deemed to belong to a reserved community.

9. Following the cancellation of the caste certificate, the appellantCcommenced disciplinary proceedings against the first respondent on 26August 2011 by issuing a memorandum of charges under the OrissaCivil Services (Classification, Control and Appeal) Rules, 1962. The firstrespondent was permitted to participate in the enquiry.

10. The enquiry officer submitted his report dated 13 JanuaryD2012, a copy of which was served on the first respondent in order tofurnish an opportunity of submitting her representation on the findings.

11. The disciplinary authority proposed to dismiss the firstrespondent from service and to recover the salary which was paid toher upon the findings in the enquiry. A show cause notice was issued toEthe first respondent.

12. The first respondent challenged the order cancelling her castecertificate before the Collector, Khurda.

13. In the meantime, on 13 March 2012, the appellant passed anForder dismissing the first respondent from service.14. The first respondent challenged her dismissal before the HighCourt under Article 226 of the Constitution of India.

15. By a judgment dated 25 January 2018, a single Judge upheldthe cancellation of the caste certificate of the first respondent but directedGthe appellant to consider her continuance in the post, inter alia, by relyingupon the decisions of this Court in Kavita Solunke Vs State ofMaharashtra & Ors[8] and Shalini Vs New English High School Assn 6 (1996) 3 SCC 5457 (2006) 3 SCC 2578 (2012) 8 SCC 430H

& Ors[9]. However, the single Judge directed that if the first respondentis reinstated, he would be disentitled to any future promotions and benefits.

16. A writ appeal was filed against the order of the single Judgewith a delay of 564 days. The Division Bench by its impugned judgmentdated 30 October 2019 declined to condone the delay and consequentlydismissed the writ appeal.

17. We have perused the reasons which were placed on the recordof the Division Bench for condoning the delay. The State had explainedin detail the steps which were taken to take necessary approvals for thepurpose of processing the writ appeal. We are of the considered viewthat the Division Bench ought to have condoned the delay in the facts ofthis case.

18. On the merits, it is evident that the first respondent obtainedemployment with the appellant against a post which was reserved forthe Scheduled Castes. She did so on the strength of a caste certificate.The caste certificate has been invalidated correctly on the ground thatthe first respondent did not belong to a Scheduled Caste by birth and hermarriage to a person belonging to a Schedule Caste would not entitledher to the benefit of the reservation for persons belonging to the ScheduleCastes. This aspect is settled by the decisions of this Court in ValsammaPaul (supra) and Anjan Kumar (supra). The High Court, however,persuaded the appellant to reconsider the claim of the first respondentfor reinstatement on the basis of the two decisions of this Court in KavitaSolunke and Shalini noted above. Both these decisions have since beenoverruled by a larger bench of three Judges of this Court in Chairmanand Managing Director, Food Corporation of India Vs JagdishBalaram Bahira[10].

19. The first respondent obtained employment against a postreserved for Scheduled Castes to which she was clearly not entitled.The effect is to displace a genuine candidate, who would otherwisehave been entitled to the post. No fault can be found with the conduct ofthe appellant in convening a disciplinary enquiry. The findings of theenquiry are unexceptionable. The punishment which was imposed couldnot be regarded as disproportionate. Irrespective of whether or not thecaste claim of the first respondent was fraudulent or otherwise, it isevident that the benefit which she obtained securing employment against9 (2013) 16 SCC 52610 (2017) 8 SCC 670

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Aa reserved post would have to be set aside once the caste claim hasbeen rejected.

20. In view of the clear principle of law which has been formulatedin the judgment of this Court in Chairman and Managing Director,Food Corporation of India (supra), we are of the view that the singleBJudge of the High Court was in error in issuing a direction forreconsideration.

21. However, in the facts and circumstances of the case, weorder and direct that no recovery shall be made from the first respondentof the salary which was paid to her for the period to which she hadCactually worked.

22. With the above reasons and subject to the aforesaid clarification,we allow the appeal and set aside the impugned judgment and order ofthe High Court dated 30 October 2019. In consequence, the judgment ofthe single Judge shall also stand set aside and the writ petition institutedDby the first respondent shall stand dismissed.

23. Pending applications, if any, stand disposed of.

Ankit Gyan

Matters disposed of.

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