IN THE HIGH COURT OF KARNATAKA AT BANGALORE THE HON'BLE MR. JUSTICE N.K.PATIL AND THE HON BLE MR.JUSTICE PRADEEP D. WAINGANKAR

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1 1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 13 TH DAY OF MAY 2014 PRESENT THE HON'BLE MR. JUSTICE N.K.PATIL AND THE HON BLE MR.JUSTICE PRADEEP D. WAINGANKAR BETWEEN WRIT APPEAL NO.2828 of 2011(S-RES) 1. THE GENERAL MANAGER THE NEW INDIA ASSURANCE CO. LTD HEAD OFFICE, THE NEW INDIA ASSURANCE BUILDING NO.87, M G ROAD, FORT MUMBAI , REPRESENTED BY ITS REGIONAL MANAGER, BANGALORE. 2. THE CHIEF REGIONAL MANAGER THE NEW INDIA ASSURANCE CO. LTD REGIONAL OFFICE, UNITY BUILDING, MISSION ROAD BANGALORE THE CHAIRMAN-CUM-MANAGING DIRECTOR APPELLATE AUTHORITY THE NEW INDIA ASSURANCE CO. LTD THE NEW INDIA ASSURANCE BUILDING NO.87, M G ROAD, FORT, MUMBAI REPRESENTED BY ITS REGIONAL MANAGER DR. CHANDRABABU (BY SRI. B C SEETHARAMA RAO, ADVOCATE)... APPELLANTS

2 2 AND 1. SRI PRAKASH KESHAV GANGULI S/O G KESHAVA SHEREGAR AGED ABOUT 58 YEARS R/AT NO.13, CANARA BANK COLONY NAGARABHAVI ROAD BANGALORE STATE OF KARNATAKA REP BY ITS SECRETARY SOCIAL & WELFARE DEPARTMENT M S BUILDINGS, BANGALORE 3. THE DEPUTY COMMISSIONER & CHAIRMAN DISTRICT LEVEL CASTE VERIFICATION COMMITTEE, BANGALORE URBAN DISTRICT BANGALORE 4. THE ADDITIONAL DIRECTOR GENERAL OF POLICE CIVIL RIGHTS ENFORCEMENT DIRECTORATE PALACE ROAD, BANGALORE THE TAHSILDAR OFFICE OF THE TAHSILDAR BANGALORE NORTH TALUK BANGALORE... RESPONDENTS (BY SRI.PADMANABHA MAHALE, SR. COUNSEL FOR SRI. S.N. BHAT, ADVOCATE FOR R1 SRI. C. JAGADISH, SPL. G.A. FOR R2 TO R5) THIS WRIT APPEAL FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION NO.25907/2009(S-RES) DATED 21/01/2011. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON AND COMING ON FOR

3 3 PRONOUNCEMENT OF JUDGMENT THIS DAY, PRADEEP D. WAINGANKAR J., DELIVERED THE FOLLOWING: JUDGMENT This appeal is preferred by the appellant questioning the validity and correctness of the order dated passed by the learned Single Judge in Writ Petition No.25907/ The facts in a nutshell which gave rise to this appeal are as follows: The respondent No.1 Praksash Keshav Ganguli belongs to Kotiyar caste which does not come under Scheduled Caste or Scheduled Tribes. But he managed to obtain a false Caste Certificate from the respondent No.5-Tahsildar, Bangalore North Taluka, showing his caste as Kotegar which falls under Scheduled Caste and thereby secured an employment with the appellant-new India Assurance Company Ltd., against a vacancy reserved for Scheduled Caste candidate. Subsequently, he had been promoted as Assistant Manager in 1991 followed by Deputy

4 4 Manager. When such being the case, the District Level Caste Verification Committee received a report from the Additional Director General of Police, Civil Rights Enforcement Directorate (CRE Cell) that he obtained the Caste Certificate by furnishing false information to the Tahsildar in order to secure an employment under the reserved category in New Indian Assurance Company Ltd. Consequently, the Caste Verification Committee cancelled the Caste Certificate issued to the respondent No.1 by its order dated directing to take action against the respondent No.1, which resulted in his dismissal by the appellant No.1 by order dated The respondent No.1 preferred Writ Petition No.25907/2009 before the learned Single Judge challenging the order of his dismissal. The Writ Petition was heard and by order dated , it came to be allowed and the order of dismissal of the respondent No.1 came to be quashed and the

5 5 appellant-new India Assurance Company Ltd., has been directed to reinstate the respondent No.1 into service with all consequential benefit from the date of his dismissal including the backwages. 3. Questioning the validity and correctness of the order passed by the leaned Single Judge in Writ Petition, this appeal is filed by the appellant-new India Assurance Company Ltd. 4. We have heard both the learned counsel appearing for the parties. Perused the impugned order passed by the learned Single Judge and other records. 5. The arguments of the learned counsel for the appellant is that the order of dismissal of the respondent No.1 cannot be interfered with, once it is established that the respondent No.1 secured appointment for the vacancy reserved for Scheduled Caste candidate by producing a false Caste Certificate. The learned counsel would further submit

6 6 that the respondent No.1 being a Central Government employee is not entitled to take benefit of the Order passed by the State Government. He would further contend that the learned Single Judge gave undue importance to the orders passed by the State Government which are contrary to law and that they are not binding even on the State Government and they could be simply ignored as the State Government had neither the authority nor the competency to amend or alter the Presidential Orders, that no other authority other than the Parliament, that too by law alone can amend the Presidential Orders. The learned counsel lastly submitted that the Apex Court under Articles 136 and 142 alone has power to mould the relief and therefore the relief granted by the learned Single Judge by moulding the relief in favour of the respondent No.1 is illegal and without the authority of law. For all these reasons, the leaned counsel sought

7 7 to set aside the order passed by the learned Single Judge. 6. The learned counsel relied upon the following decisions of the Supreme Court in support of his submission: 1) (2001) 1 Supreme Court Cases 4 (State of Maharashtra v. Milind and Others) 2) (2009) 2 Supreme Court Cases (L & S) 143 (Punjab National Bank and another vs. Vilas S/o Govindrao Bokade and another) 3) Unreported decision of the Supreme Court in Special Leave to Appeal (Civil) No.138/ Per contra, the learned counsel for the respondent No.1 made submissions supporting and justifying the ultimate relief granted by the learned Single Judge for reinstatement with backwages taking into consideration the length of service put in by the respondent No.1 relying upon the observation made in

8 8 the aforesaid decision of the Supreme Court in State of Maharashtra v. Milind and Others and Punjab National Bank and another vs. Vilas S/o Govindrao Bokade and another. 8. After having heard the submissions made by both the learned counsel appearing for the appellant and the respondents and upon going through the order passed by the learned Single Judge and other records, the undisputed facts which are relevant that the respondent No.1-Prakash Keshav Ganguli belongs to Koteyar caste which does not come under Scheduled Caste or Scheduled Tribe. The respondent No.1 obtained a false Caste Certificate from respondent No.5-Tahsilar, Bangalore North Taluka, showing his caste as Kotegar which falls under Scheduled Caste and secured an employment with the appellant-new India Assurance Company Ltd., against a vacancy reserved for sc candidate. He was also promoted as Assistant Manager in 1991 and

9 9 at the time of his dismissal, he was working as Deputy Manager. It is also not in dispute that after enquiry by the CRE Cell, his Caste Certificate came to be cancelled by the District Level Caste Verification Committee, which resulted in his dismissal from his service by order dated He questioned the legality and correctness of the order of dismissal in Writ Petition No.25907/2009 before the learned Single Judge. He relied upon the Orders passed by the State Government dated wherein the persons who had obtained Caste Certificate as belonging to Scheduled Caste or Scheduled Tribe will have to surrender the certificate for cancellation, however, they shall not be liable for penal action. The castes which were included in the said Government Order were Pariwara, Talawara, Maaleru, Kuruba, Besta and Koli. He further relied upon the subsequent Order dated passed by the State Government, whereunder the benefit given to

10 10 the aforesaid caste has been extended to the Kotegar caste shown in the Caste Certificate of respondent No.1. He further relied upon the observations made by the Supreme Court in para 38 of the judgment in State of Maharashtra v. Milind and Others and in para 19 of the judgment in Punjab National Bank and another vs. Vilas S/o Govindrao Bokade and another, wherein the Supreme Court has protected the appointment of both the employees, though the Supreme Court held that the State Government has no authority to pass the orders so as to alter the Presidential Order regarding the reservation. Ultimately, relying upon the observation made by the Supreme Court in para 38 and para 19 of the judgments (supra), the learned Single Judge allowed the Writ Petition and quashed the order of dismissal of the respondent No.1 while directing the New India Assurance Company Ltd., to reinstate the respondent

11 11 No.1 into service with consequential benefits including backwages. 9. The decision reported in (2001) 1 Supreme Court Cases 4 (State of Maharashtra v. Milind and others) is a decision rendered by the Constitutional Bench of the Apex Court, while considering the effect of the Order passed by the State Government so as to extend the benefit of reservation in the matter of education and employment, it has been categorically held that they could be simply ignored as the State Government had neither the authority nor the competency to amend or alter the Presidential Orders. The Apex Court made it clear that no other authority other than the Parliament that too, by law alone can amend the Presidential Orders. Thus, in view of the law laid down by the Constitutional Bench of the Supreme Court in the aforesaid decision, it is needles to say that the respondent No.1 cannot derive any benefit or

12 12 protection from the Orders dated and passed by the State Government. 10. Having said so, now it is to be seen whether the learned Single Judge is justified in setting aside the order of dismissal of the respondent No.1 and directing the appellant-new India Assurance Company Ltd., to reinstate the respondent No.1 with all backwages. While passing such an order, the learned Single Judge heavily relied upon the observations made by the Supreme Court in state of State of Maharashtra v. Milind and Others in para 38 and the observation made in para 19 in Punjab National Bank and another vs. Vilas S/o Govindrao Bokade and Another, which are as under: 38. Respondent 1 joined the medical course for the year Almost 15 years have passed by now. We are told he has already completed the course and may be he is practising as a doctor. In this view and at this length of time it is for nobody s benefit to

13 13 annual his admission. Huge amount is spent on each candidate for completion of medical course. No doubt, one Scheduled Tribe candidate was deprived of joining medical course by the admission given to Respondent 1. If any action is taken against Respondent 1, it may lead to depriving the service of a doctor to the society on whom public money has already been spent. In these circumstances, this judgment shall not affect the degree obtained by him and his practising as a doctor. But we make it clear that he cannot claim to belong to the Scheduled Tribe covered by the Scheduled Tribes Order. In other words, he cannot take advantages of the Scheduled Tribes Order any further or for any other constitutional purpose. Having regard to the passage of time, in the given circumstances, including interim orders passed by this Court in SLP (C) No of 1985 and other related affairs, we make it clear that the admissions and appointments that have become final, shall remain unaffected by this judgment. (underlining by us) 19. After referring to the 1950 Order and after considering a number of decision on

14 14 the question, ultimately the Court in Milind case came to the conclusion that such status of Scheduled Tribe could not be conferred on those who were belonging to Halba-Koshti caste. The decision in that behalf rendered by the Division Bench of the Bombay High Court was set aside. However, considering the circumstances that the respondent who had become a doctor about 15 years back would be losing his status, the Supreme Court made the aforementioned observation. Therefore, it was tried to be suggested before us that the observations were applicable to that particular case and the facts therein. Ordinarily we would have been persuaded to accept the argument. However, fortunately for the respondent this observation was later on relied upon by this Court in another decision in Civil Appeal No.3375 of 2000 (arising out of SLP (C) No.6254 of 1988) decided on wherein this court observed: The appellant having belonged to koshti caste claimed to be included in the Scheduled Tribe of Halba and obtained an appointment as Assistant Engineer. When his appointment was sought to be terminated

15 15 on the basis that he did not belong to Scheduled Tribe by the Government a writ petition was filed before the High Court challenging that order which was allowed. That order is questioned in this appeal. The questions arising in this case are covered by the decision in State of Maharashtra v. milina and was got to be allowed, however, the benefits derived till now shall be available to the appellant to the effect that his appointment as Assistant Engineer shall stand protected but no further. The appeal is disposed of accordingly. (underlining by us) 11. From reading the aforesaid decisions of the Supreme Court and the observations made in para 38 and 19 of the respective judgments, it is manifest that the Supreme Court in exercise of its power under Articles 136 and 142 of Indian Constitution and moulded the relief protected the appointment of both the employees. But, the High Court cannot exercise such power exercised by the Supreme Court so as to protect the employment secured by producing false

16 16 certificate which is reserved for Scheduled Caste and Scheduled Tribe candidate. In the subsequent unreported decision of the Supreme Court in Special Leave Petition No.138/2013 (Shoba Lakshmi vs. Divisional Commissioner and others), dated against an order dated passed by the Division Bench of this Court in W.A.No.530/2007, the Supreme Court has not protected the appointment as has been done in the decisions (supra). The facts of the case before the Supreme Court were that the petitioner-shoba Lakshmi secured employment as Assistant in Sahitya Academy against the vacancy reserved for Scheduled Tribe by producing the Caste Certificate issued by Tahsildar, Shimoga and Tahsildar, Bangalore North Taluk. A complaint was lodged by the petitioner- Shoba Lakshmi against the Regional Secretary of the Academy that he was harassing her in relation to her caste. Thereupon, CRE Cell conducted the detailed

17 17 enquiry and found that she does not belong to Scheduled Tribe. Thereby, the Deputy Commissioner, Bangalore, upon consideration of the report of the CRE Cell, by order dated cancelled her Caste Certificate. The appeal filed by her was dismissed by the Divisional Commissioner. She challenged the orders passed by the Deputy Commissioner and Divisional Commissioner in Writ Petition No.47454/2002. The learned Single Judge dismissed the Writ Petition. The Writ Appeal filed by her also came to be dismissed by the Division Bench of the High Court against which she preferred Special Leave Petition No.138/2013 before the Apex Court which came to be dismissed holding that the Tahsildar Shimoga and the Tahsildar, Bangalore North did not have the jurisdiction to issue Caste Certificate in favour of the petitioner so as to enable her to secure appointment against the vacancy reserved for Scheduled Tribes. While dismissing the

18 18 Special Leave Petition, the Apex Court has not exercised its power under 136 and 142 of the Constitution to protect her employment. 12. If such appointments are protected as has been done by the learned Single Judge, it would in effect encourage the others to file similar Writ Petitions and thereby in the process, the benefit of reservation meant for the persons belonging to Scheduled Caste and Scheduled Tribe in the matter of education and employment would be defeated. The learned Single Judge though rightly rejected all other contentions putforth by the respondent No.1, ought not to have allowed the Writ Petition and protected the employment of the respondent No.1 by setting aside the order of dismissal by directing the appellant to reinstate respondent No.1 with backwages. It is for this reason, we are inclined to set aside the order passed by the learned Single Judge in Writ Petition

19 19 No.25907/2009. Accordingly, we pass the following order. The appeal is allowed. The order dated passed by the learned Single Judge in Writ Petition No.25907/2009 is hereby set aside. The order of dismissal of the respondent No.1 is hereby confirmed. Sd/- JUDGE PMR Sd/- JUDGE