IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE ALOK ARADHE WRIT PETITION No.59633/2014 (GM – CC) BETWEEN:
SMT. R. JANAKI W/O SIVALINGAM, AGED ABOUT 60 YEARS, R/O NO.3056, RAJENDRA LAYOUT, DESHIHALLI POST, BANGARPET TOWN, KOLAR DISTRICT-563 114. …PETITIONER (BY SRI J.D.KASHINATH, ADVOCATE) AND:
1. THE DEPUTY COMMISSIONER & THE CHAIRMAN, DISTRICT CASTE AND INCOME VERFICATION COMMITTEE, KOLAR DISTRICT, KOLAR – 563 101.
2. THE DISTRICT SOCIAL WELFARE OFFICER & THE MEMBER SECRETARY, DISTRICT CASTE & INCOME VERIFICATION COMMITTEE KOLAR DISTRICT, KOLAR – 563 101.
3. THE ADDITIONAL DIRECTOR GENERAL OF POLICE DIRECTORATE OF CIVIL RIGHTS ENFORCEMENT, PALACE ROAD, BENGALURU-560 001.
4. THE TAHASILDAR, BANGARPET TALUK, KOLAR DISTRICT- 563 114. …RESPONDENTS (BY SRI C.JAGADISH, SPL COUNSEL) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE PROCEEDINGS AND ORDER DATED 31.12.2013 PASSED BY THE R-1 IN ITS COMMITTEE MEETING SO FAR AS PETITIONER AT SERIAL NO.7 OF THE PROCEEDINGS AND SAME BEEN ISSUED THROUGH RTI REQUEST COVERING LETTER DATED 25.6.014 VIDE ANNEXURE-A AS ILLEGAL; AND ETC., THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Sri. J.D. Kashinath, Advocate for petitioner.
Sri C. Jagadish, Special Counsel for respondents.
The petition is admitted for hearing. With the consent of learned Counsel for the parties, the matter is heard finally.
2. In this petition under Article 226 of Constitution of India, the petitioner inter alia seeks a writ of certiorari for quashing the order dated 31.12.2013 passed by respondent No.1 as well as quashment of the proceedings dated 18.09.2014 of respondent No.1. The petitioner also seeks a direction to the respondents to declare the benefits taken by the petitioner are in terms of the judgment rendered in the case of KALAVATHI NERGI –vs- DISTRICT COMMISSIONER AND OTHERS reported in 2010 ILR (KAR) page 443.
3. Facts giving rise to filing of the petition briefly stated are that, the petitioner got married with one Sivalingam on 18.10.1980 who belongs to scheduled caste Pallan community. In pursuance of the judgment of the Hon’ble Supreme Court in N.E. HORO VS. JAHAN ARA JAIPAL SINGH (AIR (1972) 1 SCC 771), the petitioner has filed an affidavit before the employer while seeking an employment that her caste is Devanga and she is a member of scheduled caste Pallan community. On the basis of the aforesaid affidavit, the petitioner joined the service of Subhashini Women P.U. College, KGF as lecturer on 21.09.1985. Thereafter, on 31.12.2013, respondent No.1-Committee unilaterally passed the order, by which the caste status of the petitioner was not accepted. Respondent No.3 also filed a complaint on 18.05.2014 to prosecute the petitioner alleging fake claim of her caste status. Thereupon, Crime No.71/2014 was registered for the offence punishable under Section 420, 197, 198 of IPC and 3(1)(9) of the Prevention of Atrocities Act, 1989. The petitioner was dismissed from service by order dated 10.06.2014.
4. The petitioner on 17.06.2014 applied for information and obtained copies of the order dated 31.12.2013 passed by respondent No.1 under Right to Information Act, 2005, through respondent No.2. The petitioner thereafter submitted her representation on 10.07.2014 against the order dated 31.12.2013. Respondent No.2 issued a notice to the petitioner informing her that meeting of respondent No.1- Committee scheduled to be held on 18.09.2014. The petitioner filed objections on 18.09.2014. Thereafter, by communication dated 01.10.2014, the petitioner was informed about the proceedings held on 18.09.2014. By order dated 18.09.2014, the matter was again referred for conducting enquiry afresh. In the aforesaid factual background, the petitioner has approached this Court.
5. Learned counsel for the petitioner submitted that controversy involved in the instant writ petition is squarely covered by order dated 26.03.2019 passed by this Court in W.P.No.8209/2016. It is further submitted that the petitioner has obtained caste certificate not either by playing fraud or by any sort of misrepresentation and therefore, caste certificate issued in favour of the petitioner has not been cancelled.
6. On the other hand, learned counsel for the respondent has supported the proceedings initiated by respondent No.1.
7. I have considered the submission made by learned counsel for the parties and perused the records.
8. Admittedly, in the instant case, the petitioner had produced caste certificate in the year 1985. The Supreme Court in the case of N.E. HORO, (supra) held that when a non-munda woman is married to a munda male and if the marriage is approved and sanctioned by the Panchayat of that tribe, the marriage is valid and such a woman becomes member of the munda tribe. The ratio laid down in the aforesaid decision by the Supreme Court was over ruled by it in the case of VALSAMMA PAUL –vs- COCHIN UNIVERSITY (1996)3 SCC 545. The petitioner has obtained the caste certificate in the year 1979 after marrying a person belonging to Scheduled Caste category. The petitioner has not played any fraud or made a misrepresentation with regard to any act while obtaining the caste certificate. The caste certificate was issued to the petitioner as per the legal position which prevailed at the time of issuance of caste certificate. Similar view has been taken by Division Bench of this Court in the case of KALAVATHI S. NERGI supra, wherein it has been held that where a person made an application under the belief that he is entitled to status of Scheduled Caste community on account of marriage as per the legal position prevalent at that point of time which has subsequently been reversed, the employment of such a person cannot be held to be illegal or improper. Division Bench of Andhra Pradesh High Court in VICE- CHANCELLOR-CUM-CHAIRMAN –vs- T.RAJESWARI AND OTHERS (2002(3) ALD 1, has held that when there was no fraud or misrepresentation committed by a person while obtaining the caste certificate, and the aforesaid certificate having been accepted by the authority and therefore, in view of the judgment of the Apex court in VALSAMMA’S case supra, being subsequent in point of time, no case for interference with the order of appointment is made out particularly after a period of 13 years. In KENDRIYA VIDALAYA SANGHATAN–vs- SHANTI ACHARYA SISINGI IN W.P.(C) 4743/2008 AND IN P.VIJAYALAKSHMI –vs- THE ORIENTAL INSURANCE COMPANY LTD. AND ANOTHER IN W.P.NO.3899/2013 similar view has been taken by Delhi High Court and Madras High Court, respectively. The Supreme court in the case of KAVITA SOLUNKE –vs- STATE OF MAHARASHTRA AND OTHERS (2012) I SCC 430, has held that if no fraud or fabrication or any misrepresentation has been committed by a person, the same would not disentitle him to claim relief from the Court and the benefit flowing from the decision of the Supreme Court in the case of ‘STATE OF MAHARASHTRA Vs. MILIND’ (2001) 1 SCC 4, was extended to the appellant in that case.
9. In the instant case, 10 days prior to the petitioner attaining superannuation, action impugned in this petition has been taken. There is no case of misrepresentation on the part of the petitioner. This Court is conscious about the legal position that when the Supreme Court declares a law, it is applicable to all the cases, unless the Supreme Court expressly states that it is prospective in nature. The petitioner in peculiar facts of the case is entitled to the benefit of belonging to the Scheduled Caste. Depriving the petitioner of the benefit of a person belonging to the Scheduled Caste category in the peculiar fact situation of the case, after a period of 36 years cannot be said to be justified, specially in the absence of any fraud or misrepresentation on the part of the petitioner.
10. So far as reliance placed by respondents on the Division Bench decision of this Court in the case of G.S.VASANTHALAKSHMI –vs- THE STATE OF KARNATAKA AND OTHERS dated 03.09.2012, is concerned, it is pertinent to mention here that in the aforesaid decision the previous Division Bench judgment of this Court in the case of KALAVATHI S.NERGI supra was not referred to which was prior in point of time, therefore the earlier Division Bench binds this Court. Besides that, in the case of G.S.VASANTHALAKSHMI, supra, it is pertinent to mention that the petitioner in the said case, after seeking divorce from her husband, had got issued a certificate as person belonging to the Scheduled Caste community which was subsequently revoked. Therefore, the ratio laid down in the aforesaid decision do not apply to the fact situation of this case. Similarly, in ‘CHAIRMAN AND MANAGING DIRECTOR, FOOD CORPORATION OF INDIA AND OTHERS –V- JAGDISH BALARAM BAHIRA AND OTHERS’ AIR 2017 SCC 3271, the Supreme Court was dealing with a case wherein the caste certificate was obtained by playing fraud. Therefore, the aforesaid decision does not apply to the fact situation of the case.
11. In view of the preceding analysis, the impugned order dated 31.12.2013 and the proceedings initiated by the respondents vide order dated 18.09.2014 against the petitioner are hereby quashed. It is directed that the petitioner shall be entitled to retrial benefits on the basis of the caste certificate issued in her favour. However, the petitioner shall not be entitled to claim benefit of a person belonging to the Scheduled Caste in future.
Accordingly, the petition is disposed of.
Sd/- JUDGE ln.