Bhubaneswar Development Authority vs Madhumita Das

Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION Civil Appeal No. 3320 of 2023 (Arising out of SLP (C) No. 9090 of 2020)

Bhubaneswar Development Authority ...Petitioner

Versus

Madhumita Das & Ors ...Respondents

Signature Not Verified

Digitally signed by NEETA SAPRA Date: 2023.05.09 14:01:55 IST Reason: 2

JUDGMENT

Dr. Dhananjaya Y Chandrachud, CJI

1. Leave granted.

2. This appeal arises from a judgment dated 30 October 2019 of a Division Bench of the

High Court of Orissa.

3. On 17 October 1998, the first respondent joined the service of the appellant as a Junior

Assistant against a post reserved for women belonging to the Scheduled Castes. In

support of her plea of belonging to a Scheduled Caste, the first respondent submitted a

caste certificate which was issued by the Tehsildar, Bhubaneswar. The caste certificate

was issued on 5 January 1996 in Miscellaneous Case No. 7/1996, mentioning that the

first respondent belonged to a Scheduled Caste, “Dewar”.

4. On 2 August 2011, the appellant requested the Sub-Collector, Khurda (the fourth

respondent) to enquire into the veracity of the caste certificate on the ground that the

high school certificate and provisional marks sheet of the first respondent at the 12 th

standard examination revealed that she was a Brahmin. On 3 August 2011, the Sub-

Collector directed an enquiry to verify the authenticity of the caste certificate issued to

the first respondent.

5. On 5 August 2011, the Tehsildar (the second respondent) issued a notice to show cause

to the first respondent after registering Rev. Misc. Case No. 47 of 2011. In her response

dated 16 August 2011, the first respondent stated she was born into a Brahmin family.

However, she claimed to have attained the status of a Scheduled Caste upon her

marriage on 21 July 1993 to a person belonging to a Scheduled Caste. 3

6. On 16 August 2011, the Tehsildar passed an order cancelling the caste certificate of the

first respondent under Rule 8(2) of the Orissa Caste Certificate (for Scheduled Castes

and Scheduled Tribes) Rules, 1980. Placing reliance on the decisions of this Court in

Valsamma Paul v. Cochin University1 and Anjan Kumar v. Union of India2, the

Tehsildar rejected the submissions of the first respondent that as a result of marriage,

she had become a member of a Scheduled Caste. The Tehsildar also relied on the

directions of the Union Ministry of Home Affairs dated 2 May 1975 stating that a person

who is not a Scheduled Caste or Scheduled Tribe by birth will not be deemed to belong

to the reserved community. Moreover, the Tehsildar noted that the husband of the first

respondent belonged to the “Kaibarta” caste, but the caste certificate of the first

respondent showed her as belonging to the “Dewar” caste. Therefore, the Tehsildar

observed that the first respondent had misled the authority at the time of the grant of the

caste certificate.

7. Following the cancellation of the caste certificate, the appellant commenced disciplinary

proceedings against the first respondent on 26 August 2011 by issuing a memorandum

of charges under the Orissa Civil Services (Classification, Control, and Appeal) Rules,

1962. An enquiry officer was appointed to inquire into the charges against the first

respondent. The first respondent was permitted to participate in the enquiry.

8. On 13 January 2012, the enquiry officer submitted the report, a copy of which was

served on the first respondent in order to furnish an opportunity of submitting her

representation on the findings. Thereafter, the disciplinary authority proposed to dismiss

the first respondent from service and recover the salary which was paid to her upon the

1 (1996) 3 SCC 545 2 (2006) 3 SCC 257 4

findings in the enquiry. A show cause notice was issued to the first respondent.

9. The first respondent challenged the order cancelling her caste certificate before the

Collector, Khurda. By an order dated 23 March 2012, the Collector rejected the appeal of

the first respondent and upheld the order of the Tehsildar dated 16 August 2011

cancelling her caste certificate.

10. On 13 March 2012, the appellant passed an order dismissing the first respondent from

service. The appellant also ordered recovery of all the money received by the first

respondent towards her salary and other perquisites during service. The first respondent

challenged her dismissal before the High Court under Article 226 of the Constitution of

India.

11. By a judgment dated 25 January 2018, a Single Judge upheld the cancellation of the

caste certificate of the first respondent but directed the appellant to consider her

continuance in the post, inter alia, by relying upon the decisions of this Court in Kavita

Solunke v. State of Maharashtra3 and Shalini v. New English High School

Association4. The Single Judge observed that the first respondent did not obtain the

caste certificate fraudulently. Therefore, the court directed the appellant to consider her

continuance in the post in the event that the post was lying vacant. In the event that the

post was not vacant, the Single Judge directed the appellant to consider her immediate

absorption in a parallel post. However, the Single Judge directed that if the first

respondent is reinstated, she would be disentitled to any future promotions and benefits.

12. A writ appeal was filed against the order of the Single Judge with a delay on five hundred

3 (2012) 8 SCC 430 4 (2013) 16 SCC 526 5

and sixty-four days. The Division Bench by its impugned judgment dated 30 October

2019 declined to condone the delay. The Court held that the reasons for delay provided

by the appellant did not constitute sufficient cause. Consequently, the writ appeal was

dismissed.

13. The first respondent has filed a counter-affidavit averring that the appellant failed to

assign sufficient reason to account for the inordinate delay of five hundred and sixty-four

days. Moreover, the first respondent urged that the order of the Single Judge dated 25

January 2018 should not be interfered with. It has been urged that the Single Judge did

not direct the appellant to compulsorily reinstate the first respondent, as was done in

Kavita Solunke (supra) and Shalini (supra). Therefore, the directions passed by the

Single Judge are (according to the submission) not based on the decisions of this Court

in Kavita Solunke (supra) and Shalini (supra).

14. We have perused the reasons which were placed on the record of the Division Bench for

condoning the delay. The State had explained in detail the steps which were taken to

take necessary approvals for the purpose of processing the writ appeal. Besides

declining to condone the delay in this case would have serious consequences of

allowing an imposter to continue having the benefit of a reserved seat. This is not just a

matter of detriment to the state but to genuine aspirants to the reserved seat who would

be ousted. We are of the considered view that the Division Bench ought to have

condoned the delay in the facts of this case.

15. The first respondent obtained employment with the appellant against a post which was

reserved for the Scheduled Caste. She did so on the strength of a caste certificate. The

caste certificate has been invalidated by the Tehsildar by relying upon the decisions of 6

this Court in Valsamma Paul (supra) and Anjan Kumar (supra).

16. In Valsamma Paul (supra), the appellant belonged to a forward caste but claimed that

she had become a member of the reserved community by marriage. The appellant’s

selection for the post of lecturer as a reserved candidate was challenged by another

candidate. The question before a two Judge Bench was whether a person of a forward

caste becomes entitled to claim reservation under Articles 15(4) or 16(4) of the

Constitution by marrying a person belonging to the reserved community. This Court held

that a person from a forward caste who is transplanted in the backward caste by

adoption, marriage or conversion will not be entitled to reservation:

34. […] A candidate who had the advantageous start in life being born in Forward Caste and had march of advantageous life but is transplanted in Backward Caste by adoption or marriage or conversion, does not become eligible to the benefit of reservation either under Article 15(4) or 16(4), as the case may be.

Acquisition of the status of Scheduled Caste etc. by voluntary mobility into these categories would play fraud on the Constitution, and would frustrate the benign constitutional policy under Articles 15(4) and 16(4) of the Constitution.

17. In Anjan Kumar (supra), the question before this Court was whether a person born from

a marriage between a tribal wife and a non-tribal husband could claim the status of

Scheduled Tribe. This Court held that such a person cannot claim tribal status, unless

they show that they have suffered social, economic, and educational disabilities. This

Court referred to a catena of decisions, including Valsamma Paul (supra), to observe

that a condition precedent for granting a tribe certificate is that one must suffer

disabilities from where one belongs.

18. In the order dated 16 August 2011, the Tehsildar observed that the first respondent did

not claim that she suffered disability or disadvantage as a result of her marriage. 7

Therefore, the Tehsildar was correct in invalidating the caste certificate of the first

respondent on the ground that she did not belong to a Scheduled Caste by birth and her

marriage to a person belonging to a Scheduled Caste would not entitle her to the benefit

of the reservation for persons belonging to the caste of her spouse.

19. The Single Judge of the High Court directed the appellant to reconsider the claim of the

first respondent for reinstatement on the basis of the decisions of this Court in Kavita

Solunke (supra) and Shalini (supra). However, both these decisions have been

overruled by a larger Bench of three Judges of this Court in Chairman and Managing

Director, Food Corporation of India v. Jagdish Balaram Bahira.5

20. In Shalini (supra), a two Judge Bench of this Court relied on Kavita Solunke (supra) to

propound a test of dishonest intention for the grant or denial of protection to persons

whose caste claims have been invalidated. In Shalini (supra), this Court directed

reinstatement of the individual whose caste certificate was found to be invalid because

they did not intentionally falsify their caste certificate.

21. In Chairman and Managing Director, Food Corporation of India (supra), the issue

before this Court was whether protection should be granted to individuals who secure

access to reservation in spite of the fact that they do not belong to the reserved

community. This Court overruled Kavita Solunke (supra) and Shalini (supra) on the

ground that it would be contrary to the express provision of the law to import the

requirement of dishonest intention. This court held:

55. […] The intent of a candidate may be of relevance only if there is a prosecution for a criminal offence. However, where a civil consequence of withdrawing the benefits which have 5 (2017) 8 SCC 670 8

accrued on the basis of a false caste claim is in issue, it would be contrary to the legislative intent to import the requirement of a dishonest intent. In importing such a requirement, the Bench of two Judges in Shalini [Shalini v. New English High School Assn., (2013) 16 SCC 526 : (2014) 3 SCC (L&S) 265] has, with great respect, fallen into error. The judgment in Shalini [Shalini v. New English High 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 impossible burden to delve into the mental processes of an applicant for a caste certificate. […]

This Court further held that granting protection to individuals who are ineligible for the

post has a deleterious effect on good governance as it: (i) allows an ineligible person to

gain access to a scarce public resource (public employment); (ii) violates the rights of

eligible persons; and (iii) perpetuates illegality by unduly bestowing benefits on an

ineligible person.

22. The first respondent obtained employment against a post reserved for Scheduled Castes

to which she was not entitled. The effect is to displace a genuine candidate, who would

otherwise have been entitled to the post. No fault can be found with the conduct of the

appellant in convening a disciplinary enquiry. The findings of the enquiry are

unexceptionable. The punishment which was imposed could not be regarded as

disproportionate. Irrespective of whether or not the caste claim of the first respondent

was fraudulent or otherwise, it is evident that the benefit which she obtained of securing

employment against a reserved post would have to be recalled once the caste claim has

been rejected.

23. In view of the clear principle of law which was has been formulated in the judgment of

this Court in Chairman and Managing Director, Food Corporation of India (supra),

we are of the view that the Single Judge of the High Court was in error in issuing a 9

direction for reconsideration of the claim of the first respondent for reinstatement.

24. However, in the facts and circumstances of the case, we order and direct that no

recovery shall be made from the first respondent of the salary which was paid to her for

the period for which she has actually worked.

25. With the above reasons and subject to the aforesaid clarification, we allow the appeal

and set aside the impugned judgment and order of the High Court dated 30 October

2019. In consequence, the judgment of the Single Judge shall also stand set aside. The

writ petition instituted by the first respondent shall stand dismissed.

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

…...…...….......………………....…CJI.

[Dhananjaya Y Chandrachud]

…...…...….......………………....…..J. [J B Pardiwala]

New Delhi;

May 02, 2023 10

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No 3320 of 2023 (Arising out of SLP (C) No 9090 of 2020)

Bhubaneswar Development Authority … Appellant

Versus

Madhumita Das & Ors … Respondents

ORDER

1 Leave granted.

2 This appeal arises from a judgment of a Division Bench of the High Court of

Orissa dated 30 October 2019.

3 The first respondent joined the service of the appellant as a Junior Assistant

against a post reserved for women belonging to Scheduled Castes category. In

support of her plea of belonging to a Scheduled Caste, the first respondent

submitted a caste certificate which was issued by the Tehsildar, Bhubaneswar.

The caste certificate was issued on 5 January 1996.

4 A Miscellaneous Case No 7/1996 was filed mentioning that the first 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 caste certificate on the ground

that the high school certificate and provisional marks sheet of the first

respondent and the 12th standard examination reveal that she was a Brahmin. 11

6 The Tehsildar issued notice to show cause to the first respondent after

registering Rev. Misc. Case No 47 of 2011.

7 In her response dated 16 August 2011, the first respondent stated that she was

born into a Brahmin family but claimed to have attained the status of a Schedule

Caste upon her marriage on 21 July 1993 to a person belonging to a Scheduled

Caste.

8 On 16 August 2011, the Tehsildar passed an order cancelling the caste certificate

of the first respondent under Rule 8(2) of the Orissa Caste Certificate (for

Scheduled Castes and Scheduled Tribes) Rules, 1980. Placing reliance on the

decisions of this Court in Valsamma Paul vs Cochin University 6 and Anjan

Kumar vs Union of India7, the Tehsildar rejected the submissions of the first

respondent that as a result of marriage, she had become a member of a

Schedule Caste. The Tehsildar also relied on the directions of the Union Ministry

of Home Affairs that a person who is not a Scheduled Caste or Schedule Tribe by

birth will not be deemed to belong to a reserved community.

9 Following the cancellation of the caste certificate, the appellant commenced

disciplinary proceedings against the first respondent on 26 August 2011 by

issuing a memorandum of charges under the Orissa Civil Services (Classification,

Control and Appeal) Rules, 1962. The first respondent was permitted to

participate in the enquiry.

10 The enquiry officer submitted his report dated 13 January 2012, a copy of which

was served on the first respondent in order to furnish an opportunity of

6 (1996) 3 SCC 545 7 (2006) 3 SCC 257 12

submitting her representation on the findings.

11 The disciplinary authority proposed to dismiss the first respondent from service

and to recover the salary which was paid to her upon the findings in the enquiry.

A show cause notice was issued to the first respondent.

12 The first respondent challenged the order cancelling her caste certificate before

the Collector, Khurda.

13 In the meantime, on 13 March 2012, the appellant passed an order dismissing

the first respondent from service.

14 The first respondent challenged her dismissal before the High Court under Article

226 of the Constitution of India.

15 By a judgment dated 25 January 2018, a single Judge upheld the cancellation of

the caste certificate of the first respondent but directed the appellant to consider

her continuance in the post, inter alia, by relying upon the decisions of this Court

in Kavita Solunke Vs State of Maharashtra & Ors 8 and Shalini Vs New

English High School Assn & Ors 9. However, the single Judge directed that if

the first respondent is reinstated, he would be disentitled to any future

promotions and benefits.

16 A writ appeal was filed against the order of the single Judge with a delay of 564

days. The Division Bench by its impugned judgment dated 30 October 2019

declined to condone the delay and consequently dismissed the writ appeal.

17 We have perused the reasons which were placed on the record of the Division

8 (2012) 8 SCC 430 9 (2013) 16 SCC 526 13

Bench for condoning the delay. The State had explained in detail the steps

which were taken to take necessary approvals for the purpose of processing the

writ appeal. We are of the considered view that the Division Bench ought to

have condoned the delay in the facts of this case.

18 On the merits, it is evident that the first respondent obtained employment with

the appellant against a post which was reserved for the Scheduled Castes. She

did so on the strength of a caste certificate. The caste certificate has been

invalidated correctly on the ground that the first respondent did not belong to a

Scheduled Caste by birth and her marriage to a person belonging to a Schedule

Caste would not entitled her to the benefit of the reservation for persons

belonging to the Schedule Castes. This aspect is settled by the decisions of this

Court in Valsamma Paul (supra) and Anjan Kumar (supra). The High Court,

however, persuaded the appellant to reconsider the claim of the first respondent

for reinstatement on the basis of the two decisions of this Court in Kavita

Solunke and Shalini noted above. Both these decisions have since been

overruled by a larger bench of three Judges of this Court in Chairman and

Managing Director, Food Corporation of India Vs Jagdish Balaram

Bahira10.

19 The first respondent obtained employment against a post reserved for Scheduled

Castes to which she was clearly not entitled. The effect is to displace a genuine

candidate, who would otherwise have been entitled to the post. No fault can be

found with the conduct of the appellant in convening a disciplinary enquiry. The

findings of the enquiry are unexceptionable. The punishment which was

imposed could not be regarded as disproportionate. Irrespective of whether or

10 (2017) 8 SCC 670 14

not the caste claim of the first respondent was fraudulent or otherwise, it is

evident that the benefit which she obtained securing employment against a

reserved post would have to be set aside once the caste claim has been rejected.

20 In view of the clear principle of law which has been formulated in the judgment of

this Court in Chairman and Managing Director, Food Corporation of India

(supra), we are of the view that the single Judge of the High Court was in error in

issuing a direction for reconsideration.

21 However, in the facts and circumstances of the case, we order and direct that no

recovery shall be made from the first respondent of the salary which was paid to

her for the period to which she had actually worked.

22 With the above reasons and subject to the aforesaid clarification, we allow the

appeal and set aside the impugned judgment and order of the High Court dated

30 October 2019. In consequence, the judgment of the single Judge shall also

stand set aside and the writ petition instituted by the first respondent shall stand

dismissed.

23 Pending applications, if any, stand disposed of.

…...…...….......………………....…CJI.

[Dr Dhananjaya Y Chandrachud]

…...…...….......………………....…..J. [J B Pardiwala]

New Delhi;

May 02, 2023 GKA 15

ITEM NO.7 COURT NO.1 SECTION XI-A

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C) No(s). 9090/2020

(Arising out of impugned final judgment and order dated 30-10-2019 in IA No. 625/2019 passed by the High Court Of Orissa At Cuttack)

BHUBANESWAR DEVELOPMENT AUTHORITY Petitioner(s)

VERSUS

MADHUMITA DAS & ORS. Respondent(s)

(IA No. 66501/2020 - EXEMPTION FROM FILING O.T.)

Date : 02-05-2023 These matters were called on for hearing today.

CORAM : HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE J.B. PARDIWALA

For Petitioner(s) Mr. Ashok Panigrahi, AOR Mr. Nabab Singh, Adv. Ms. Geetanjali Das Krishnan, Adv.

For Respondent(s) Mr. Animesh Kumar, Adv. Mr. Neeraj Shekhar, AOR Mr. Nishant Kumar, Adv. Ms. Aprajita, Adv.

UPON hearing the counsel the Court made the following O R D E R

1 The appeal is allowed in terms of the signed reportable judgment operative part

of which reads as under :

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

21 However, in the facts and circumstances of the case, we order and direct that no recovery shall be made from the first respondent of the salary which was paid to her for the 16

period to which she had actually worked.

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

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

(GULSHAN KUMAR ARORA) (SAROJ KUMARI GAUR) AR-CUM-PS ASSISTANT REGISTRAR

(Signed reportable judgment is placed on the file)