1. This petition is filed by the petitioner seeking writ of
mandamus or any other writs to cancel the order of his
termination dated 2.3.2007, passed by the Respondent No.2-
Assistant General Manager,Central Bank of India and the letter
dated 30.1.2008 issued by the respondent no.1 and seeking
direction against the respondents to reinstate the petitioner.
2.
Factual Matrix
: The petitioner was appointed in
the respondent No.-1 Central Bank on 20.3.1983 as a Clerk from
the reserved category. The petitioner, at that time, was having
Caste Certificate issued by the competent authority declaring him
Mahadeo Koli- Schedule Tribe. After 7 years of service, the
petitioner was given promotion to the Post of Junior Manager,
Grade-I. However, upon reference made to the Schedule Tribe
Caste Certificate Scrutiny Committee for verification, the caste
certificate of the petitioner was invalidated by the said committee
vide its order dated 8.1.2007. The respondent No.2 acted upon it
and issued order of termination of the petitioner on 2.3.2007. The
petitioner filed Writ petition No.2710 of 2007 and the said petition
was withdrawn with liberty to make representation to the
Respondent No.1 Bank. With the result, the order of the scrutiny
committee invalidating cast claim of the petitioner become final
and conclusive and it remains in operation. However, the said
representation made by the petitioner was rejected by respondent
No.1 Bank vide its letter dated 30.1.2008. Hence, this petition.
This order of rejection is a subject matter of challenge in this
petition filed under Article 226 of the Constitution of India.
3.
Submissions
: Learned counsel appearing for the
petitioner has submitted that the petitioner belongs to Mahadeo
Koli which falls under Scheduled Tribe, reserved category and,
therefore, his recruitment in the Bank was legal. Learned Counsel
has further submitted that assuming that the petitioner is not
'Mahadeo Koli' but is a simiplicitor 'Koli', yet the termination is
illegal. The submission of the learned counsel is entirely based
on the Government of Maharashtra Resolution No. BCC/
1094/CR.68/94/16B, dated 15th June, 1995, by which the service
of the person who have entered service or promoted on the basis
of Cast reservation, prior to 1995 , were sought to be protected.
In support of his submission, the learned advocate placed
reliance on the Judgment of the Hon'ble Supreme Court in the
case of Panjab National Bank & another Vs. Vilas Govndrao Bokade
& another in Civil Application No. 1548 of 2007.
4. On our query, the learned Advocate of the petitioner
admitted that the petitioner belongs to Koli and not Mahadeo Koli.
By this GR, issued by the Government of Maharashtra, the
recruitment and the promotion, if made earlier to 1995, are
protected. The petitioner was appointed on 20.3.1983. He claims
to be protected under this resolution. As already stated, the
subject Resolution is issued by the Government of Maharashtra ,
where as the petitioner was working in Central Bank of India ( a
Central Government Undertaking. He was recruited through the
Banking Service Recruitment Board in 1983.
5.
The Issue
: The issue thus, remains is : Whether
the Resolution of the State Government is applicable to the
employees of public sector undertaking of the Central Government
petitioner and the petitioner is entitled to claim benefit thereof ?
6.
(supra), is a Division Bench Judgement of the Apex Court. The
Hon'ble Lordships constituting the Bench have given
independent / separate reasonings. The appeal was dismissed for
the separate reasons recorded therein. The
Seema (as he there was) has taken a view that the resolution
Hon'ble Justice
dated 15th June, 1995 was applicable to the service of
Government/Semi Government and Boards, Municipalities,
Municipal Corporation, District Councils, Co-operative Banks and
government undertakings etc. The Hon'ble justice Shirpurkar,
while considering the issue, did not record positive findings with
regard to the applicability or non-applicability of the GR dated
15.6.1995 and relied on the State of Maharashtra Vs. Milind &
others, ( 2001 (II) Mh.LJ (SC)1 in support of his view and
observed as under:-
"5. It is not necessary for us to consider the question as
to whether protection provided in the Government
Resolution dated 15.6.1995 is applicable to a Bank
employee like the respondent since the protection is provided
in Milind's ca se in no uncertain terms."
(Emphasis supplied)
7. In the above Judgement of Punjab National Bank,
Justice Sema (as he there was) has recorded a positive finding
that the Government Resolution dated 15.6.1995 is applicable to a
Central Government undertaking, whereas the Judgement of
Justice Sirpurkar is silent on this issue as such on the concept
of sub-silentio, the said decision is not an authority on the
question of applicability of the Maharashtra Government
Resolution to the Central Government Undertakings. Hence, the
reliance on this judgement placed by Mr. Mendadkar, to claim
benefit of the said resolution is misplaced.
8. In the subsequent judgement in the case of -
Additional General Manager, Human Resource, BHEL Ltd. Vs. Suresh
Ramkrishna Burde, reported in 2007 (4) AIR Bom. R 180, the two
Judge Bench of the Hon'ble Apex Court has directly dealt with the
issue, in para 14 of the said ruling, holding that-
"14. Learned counsel for the petitioner also sought to take
some benefit of a certain Government Order dated 15.6.1995
issued by the State of Maharashtra wherein some reservation
in service is provided to members of Special Backward class.
In our opinion, the respondent can get no benefit from the
same as he is not an employee of the government of
Maharashtra but is an employee of a public sector
undertaking of Central government and he is secured the
appointment long before on 31.5.1982.
(Emphasis added)
9. In view of the aforesaid law laid down by the Apex
Court, we hold that the Government Resolution of 15.6.1995 is
applicable to employees of the Government of Maharashtra
alone. The petitioner was an employee of the Central Bank of
India, an undertaking of the Central government, as such it is not
applicable to the case of the petitioner.
10. The sequence and the narration of the facts above
leaves little doubt in our mind that caste certificate on the basis of
which the petitioner got employment was false to his knowledge.
In this backdrop, the question for our consideration would be
whether because of the employee having rendered services to the
employer for a period of more than 25 years, would be entitled for
appointment, when admittedly in the first instance, the petitioner
was not eligible for said appointment.
11. The aforesaid issue is no longer resintegra.
ig The
implication of misuse of benefits conferred by the Constitution on a
particular section or sections of the society were highlighted by the
apex Court in the case of Kumari Madhuri Patil & Anr. Vs.
Additional Commissioner Tribal Development & Ors. (1994) 6
SCC 241. It was said that the admission wrongly gained or
appointment wrongly obtained on the basis of false social status
certificate necessarily has the effect of depriving the genuine
Scheduled Castes or Scheduled Tribes or OBC candidates as
enjoined in the Constitution of the benefits conferred on them by
the Constitution. The genuine candidates are also denied
admission to educational institutions or appointments to office or
posts under a State for want of social status certificate. Therefore,
with a view to streamline the procedure for the issuance of social
status certificates their scrutiny and their approval, the Court issued
as many as fifteen directions. One of the directions so issued, was
that as soon as the finding is recorded by the Scrutiny Committee,
holding that the certificate obtained was false, on its cancellation
and confiscation simultaneously, it should be communicated to the
educational institution concerned, or the appointing authority with a
request to cancel the admission or the appointment. Thereupon,
the admission or the appointment shall be cancelled without any
further notice to the candidate and the candidate shall be debarred
from further study or continue in office in a post.
12. Similarly, the plea regarding rendering of services
for a long period has been considered and rejected in a series of
decisions of the Apex Court and the Apex Court deem it
unnecessary to launch on exhaustive dissertation on principles in
this context. It would suffice to state that except in a few decisions,
where the admission / appointment was not cancelled because of
peculiar factual matrix obtaining therein, the consensus of judicial
opinion is that equity, sympathy or generosity has no place where
the original appointment rests on a false caste certificate. A person
who enters the service by producing a false caste certificate and
obtains appointment for the post meant for a Scheduled Caste or
Scheduled Tribe or OBC, as the case may be, deprives a genuine
candidate falling in either of the said categories, of appointment to
that post, does not deserve any sympathy or indulgence of this
Court. He who comes to the Court with a claim based on falsity
and deception cannot plead equity nor the Court would be justified
to exercise equity jurisdiction in his favour. An act of deliberate
deception with a decision to secure something, which is otherwise
not due, tantamounts to fraud. Fraud is a conduct either by letter
or words, which induces the other person or authority to take a
definite determinative stand as a response to the conduct of the
former either by words or letter. (See. R.Vishwanatha Pillai Vs.
State of Kerala & Ors. (2004) 2 SCC 105, Bank of India & Anr.
Vs. Avinash D.Mandivikar & Ors. Addl.General Manager, (2005)
7 SCC 690, Derry Vs. Peek (2005) 7 SCC 605, Ram Preeti Yadav
S. U.P.Board of High School and Intermediate Education & Ors.
(2003) 8 SCC 311 and Bhaurao Dagdu Paralkar Vs. State of
Maharashtra & Ors. (2005) 7 SCC 605)
In Ram Chandra Singh Vs. Savitri & Ors. (2003) 8
13.
SCC 319 the Apex Court had observed that fraud is anathema to all
equitable principles and any affair tainted with fraud cannot be
perpetuated or saved by the application of any equitable doctrine.
14. In State of Maharashtra and Ors. Vs. Sanjay
K.Nimje, 2007(2) SCALE 214, it was held that a person cannot get
a benefit to which he is not otherwise entitled to.
15. Recently, in State of Maharashtra & Ors. Vs. Ravi
Prakash Babulalsing Parmar & Anr., (2007) 1 SCC 80 dealing
with a similar situation, the Apex Court has observed that :
"The makers of the Constitution laid emphasis on equality
amongst citizens. The Constitution of India provides for
protective discrimination and reservation so as to enable
the disadvantaged group to come on the same platform as
that of the forward community. If and when a person
takes an undue advantage of the said beneficent provision
of the Constitution by obtaining the benefits of reservation
and other benefits provided under the Presidential Order
although he is not entitled thereto, he not only plays a
fraud on the society but in effect and substance plays a
fraud on the Constitution. When, therefore, a certificate is
granted to a person who is not otherwise entitled thereto,
it is entirely incorrect to contend that the State shall be
helpless spectator in the matter."
16. Having considered the matter in the light of the
aforestated legal position, in our judgment, the decision of the High
Court is untenable. As noted supra, the employee having accepted
the finding of the Scrutiny Committee, holding that the caste
certificate furnished by the employee was false, the very foundation
of his appointment vanished and his appointment was rendered
illegal. His conduct renders him unfit to be continued in service.
Under these circumstances, there is absolutely no justification for
his claim in respect of the post merely on the ground that he had
worked on the post for over twenty years. The post was meant for
a reserved candidate but she usurped the same by
misrepresentation and deception. In our opinion, the fact that
caste certificate was referred to the Scrutiny Committee for
verification after more than ten years of his joining the service and
a long time was taken by the Scrutiny Committee to verify the
same is of no consequence inasmuch as delay on both the courts
does not validate the caste certificate and the consequent illegal
appointment.
17. We are also unable to persuade ourselves to agree
with learned counsel for the employee that in the absence of any
finding of fraud having been played by the employee, the order of
the High Court is equitable and should not be interfered with. As
noted above, the selection of the employee was conceived in
deceipt and, therefore, could not be saved by equitable
consideration.
18. In view of the foregoing discussion, the petition is
dismissed in limine with no order as to costs.