Jayashree vs The Director Collegiate Education

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1559 OF 2022 (Arising out of SLP (C)No. 7726 of 2019)

JAYASHREE Appellant(s)

VERSUS

THE DIRECTOR COLLEGIATE EDUCATION Respondent(s)

J U D G M E N T

K. M. JOSEPH, J.

1. Leave granted.

2. By the impugned order, the High Court has dismissed the

writ petition filed by the appellant against the order passed

by the Karnataka Administrative Tribunal, Bengaluru rejecting

the OA filed by the appellant against the order dated

24.03.2014. By order dated 24.03.2014, the respondent-State

has purported to terminate the services of the appellant on

the basis that the appellant was found to not belong to the

Scheduled Tribe community purporting to belong to which the

appellant applied and was given appointment. Further by the Signature Not Verified impugned order, the appellant has been called upon to pay the Digitally signed by Nidhi Ahuja Date: 2022.03.03 10:13:24 IST Reason: amounts which she has received.

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3. Heard Mr. S. N. Bhat, learned senior counsel appearing

for the appellant, and Mr. V. N. Raghupathy, learned counsel

appearing for the respondent.

4. Learned senior counsel for the appellant would submit

that the High Court has proceeded on the basis of the judgment

of this Court reported in Chairman and Managing Director, Food

Corporation of India and Others v. Jagdish Balaram Bahira and

Others 2017(8) SCC 670. The complaint is that the High Court

has not examined the scope of The Karnataka Scheduled Castes,

Scheduled Tribes and Other Backward Classes (Reservation of

Appointments, etc.) Act, 1990 (hereinafter referred to as ‘Act’

for brevity) and The Karnataka Scheduled Castes, Scheduled

Tribes and Other Backward Classes (Reservation of Appointment,

etc.) Rules, 1992 (hereinafter referred to as ‘Rules’ for

brevity).

5. He would draw our attention to Sections 4(1) and 4(4)

of the Act which reads as follows:

“4. Reservation of appointments or posts etc.- (1) After the appointed day, while making appointments to any office in a civil service of the State of Karnataka or to a civil post under the State of Karnataka, appointments or posts shall be reserved for the members of the Scheduled Castes, Scheduled Tribes and other Backward Classes to such extent and in such manner as may be specified from time to time in the order made by the Government under clause (4) of Article 16 of the Constitution of India.

xxx xxx xxx (4) All appointments made in contravention of the provisions of this section shall be voidable.”

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On the basis of the same, he pointed out Section 4(4)

contemplates that the appointment in contravention of Section

4(1) is not void, but it will be voidable. This goes to the

root of the matter and had it been a case where the law

declares it would be void, it would have been different. In

conjunction with this aspect of the matter, learned senior

counsel would complain again that no notice was served on the

appellant before the order of termination was issued. He would,

undoubtedly, point out that under the Act and the Rules,

authorities have purported to find that the appellant did not

deserve appointment under the quota of reservation made for

the Scheduled Tribe community. He would submit that appellant

was at the time, under the impression that the appellant whose

caste is ‘Talawara’, was to be treated as belonging to the

‘Hindu Tokare Koli’ community which is a Scheduled Tribe.

Thereafter, he took us to the judgment of this Court in

Chairman and Managing Director, Food Corporation of India and

Others (supra). He would point out that the principles

enunciated in the said case countenancing recovery of the

benefits received may not be applicable. In this regard, he

harnessed the plea that there was no fraud practiced by the

appellant in securing the appointment in question and the

Scheduled Tribe certificate. Therefore, this would warrant his

submission that no recovery should be made. In fact, besides

pointing out that even the termination was illegal as it was

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done without following the principles of nature justice, he

would point out that had the appellant been provided with an

opportunity, she could have placed circumstances which may

have dissuaded the authorities from issuing the order of

termination. Another argument which he raised is based on Rule

7B of the Rules. Rule 7B reads as follows:

“7B. Monetary benefits secured on the basis of false caste certificate to be withdrawn: -Any amount paid to any person by the Government or any other agency by way of scholarship, grant, allowances or other financial benefits on the basis of false caste certificate shall without prejudice to any ‘other action be liable to be recovered from such person.”

He would contend that the amount which could be recovered

under the Rules would not cover the salary and allowances

which are sought to be recovered.

He would further contend that should this Court not be

inclined to accept his argument, in exercise of power under

Article 142 of the Constitution, the Court may grant relief

against the order for recovery. He pointed out that the

appellant has worked all these years and has earned the salary.

6. Learned counsel for the respondent, on the other hand,

would point out that it is self-evident from the order which

has been produced before this Court also that ample opportunity

was given to the appellant to make good her case that she

belongs to the Scheduled Tribe community. She having failed in

the matter cannot now set up a case as projected. He supports

the impugned Judgment.

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FINDINGS

7. It is true that section 4(1) of the Act declares that

appointment in respect of reserved categories are to be made

as provided therein. The impact of a contravention is dealt

with in section 4(4). The contention that the legislature has

only made it voidable and not void and, therefore, it is

sufficient to salvage the appointment of the appellant unless

and until, an opportunity is granted to the appellant and

therefore, the principles in Chairman and Managing Director,

Food Corporation of India and Others (supra) would not apply,

does not appeal to us.

8. We may notice, no doubt, that in a case where a valuation

list came to be impugned, contending that it was void, Lord

Denning, M.R. held1:

“It is necessary to distinguish between two kinds of invalidity. The one kind is where the invalidity is so grave that the list is a nullity altogether. In which case there is no need for an order to quash it. It is automatically null and void without more ado. The other kind is when the invalidity does not make the list void altogether, but only voidable. In that case it stands unless and until it is set aside. In the present case the valuation list is not, and never has been, a nullity. At most the first respondent — acting within his jurisdiction — exercised that jurisdiction erroneously. That makes the list voidable and not void. It remains good until it is set aside.”

1 R. v. Paddington Valuation Officer, ex p Peachey Property Corpn.

Ltd. [(1965) 2 All ER 836 : (1966) 1 QB 380 : (1965) 3 WLR 426 (CA)]

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9. This Court, after referring to the aforesaid case, inter

alia, in the decision reported in Dhurandhar Prasad Singh vs.

Jai Prakash University and others, (2001) 6 SCC 534, held:

“22. Thus the expressions “void and voidable” have been the subject-matter of consideration on innumerable occasions by courts. The expression “void” has several facets. One type of void acts, transactions, decrees are those which are wholly without jurisdiction, ab initio void and for avoiding the same no declaration is necessary, law does not take any notice of the same and it can be disregarded in collateral proceeding or otherwise. The other type of void act, e.g., may be transaction against a minor without being represented by a next friend. Such a transaction is a good transaction against the whole world. So far as the minor is concerned, if he decides to avoid the same and succeeds in avoiding it by taking recourse to appropriate proceeding the transaction becomes void from the very beginning. Another type of void act may be which is not a nullity but for avoiding the same a declaration has to be made. Voidable act is that which is a good act unless avoided, e.g., if a suit is filed for a declaration that a document is fraudulent and/or forged and fabricated, it is voidable as the apparent state of affairs is the real state of affairs and a party who alleges otherwise is obliged to prove it. If it is proved that the document is forged and fabricated and a declaration to that effect is given, a transaction becomes void from the very beginning. There may be a voidable transaction which is required to be set aside and the same is avoided from the day it is so set aside and not any day prior to it. In cases where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would be obviously voidable.”

It may be that the appointment made in contravention of

Section 4(1) of the Act has to be avoided. But the mere fact

that the Law Giver has used the word ‘voidable’, cannot, in

the context, detract from the gravity of the matter. The matter

is not to be judged from the need for an act by the employer.

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The scheme of the Act appears to be in tune with the

Constitutional mandate which is to reserve appointments in

favour of the deserving categories as are covered under

Articles 341 and 342 of the Constitution, inter alia. In other

words, appointments are to be made inter alia in favour of the

Scheduled Tribes. If an appointment is made in contravention

of the said mandate then it is, no doubt, declared voidable.

The expression ‘voidable’ in the context of the Act and the

object of the Act and more importantly, and the constitutional

value of equality would mean that appointments to the reserved

vacancies are meant only for those who are deserving by being

members of the said community alone. If any person other than

a member of the reserved community is appointed, it would

clearly constitute an infringement of the rights of the

genuinely deserving members of the said Scheduled Tribes which

is the category with which we are concerned. Furthermore, even

the applicants applying under the general categories could be

adversely affected.

10. No exception can be taken to the termination of the

service for another reason. The vacancy which would result

upon the termination of the appointment of the appellant would

become available to a deserving member of the reserved

category. We may also notice that in the appointment order of

the appellant, it has been communicated that appointments are

temporary and liable to the cancelled and subject to

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verification.

“2. These appointments are purely temporary in nature, if any of the information are proved to be false appointment will be cancelled and legal actions will be taken against such candidates.

Sl. Sl. No. as Candidates Reservation College posted Remarks No. per name and for selection address list 1 2 3 4 5 6 05 30 Smt. Jayashree Scheduled Government Against vacant Srimantha Tribe First Grade position Choudary, College, Gowligalli, Naragunda Athani, Belgaum

11. In fact, under the Rules, an applicant for appointment

seeking reservation is expected to make an application for

obtaining a validity certificate of his caste certificate. In

this case, the appellant secured a caste certificate from a

Tehsildar under an Executive Order prior to the Act being

enacted. The Rules contemplate an applicant seeking a validity

certificate. In other words, the caste certificate relied upon

by a candidate had to be validated under Rule 7.

12. The appointment could not have been made under Rule 9

of the Rules which proscribes appointment except upon

production of a validity certificate. Therefore, the scheme of

the Rules, in short, appears to be that the applicant must

obtain a validity certificate contemplated under Rule 7 and

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only thereupon, the appointment could be made as contemplated

under Rule 9. It would appear, however, that the appellant who

was appointed by order dated 16.01.1996 did not as such produce

the validity certificate. The appointments were being made on

the basis that the verification will be done under Rule 7 in

connection with the validity certificate. It is in 2001 that

the competent committee came to the conclusion that the

appellant did not belong to Scheduled Tribe community.

Whatever, that may be, the fact remains that the

appellant does not have a case that the appellant produced a

validity certificate as contemplated under Rule 7 read with

Rule 9 at the time of her appointment.

13. Therefore, appointment of the appellant was clearly

tentative and dependent on the appellant producing the proof

of her certificate being valid and genuine. There is no dispute

that the aspect of the appellant not belonging to the Scheduled

Tribe community has attained finality for the reason that

though the appellant challenged the order of the Scrutiny

Committee before the Divisional Commissioner, he has affirmed

the Order and in fact, there is no challenge to these decisions

holding that the appellant does not belong to the Scheduled

Caste Community. Once it is found that the appellant does not

belong to the Scheduled Tribe community, it attracted Section

4(4). The appointment became voidable.

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14. In a situation where the law provides that the

appointment is voidable, an act of the employer seeking to

avoid the appointment is all that is required. As to whether

it should be accompanied by compliance with natural justice is

a different matter. The decision taken by the appointing

authority to avoid the appointment is in keeping with the

requirement under Section 4(4). Therefore, we see no merit in

the contention of the appellant that since section 4(4) does

not declare the appointment void, it would not attract the

power of respondent to terminate the appointment of the

appellant or that the principles in FCI (supra), will not

apply.

15. In fact, in this regard, we notice another circumstance.

The Government of the respondent-State issued circular dated

11.03.2002 by which it gave an opportunity to surrender the

certificate with certain benefits. It, inter alia, reads as

follows:

“Preamble:

In Government Order read at (1) above the following benefits available to the Scheduled Tribes were extended to the persons belonging to the Nayak, Naik, Beda, Valmiki, Priwara and Talawara communities pending decision of Government of India to treat these communities as synonyms of Nayaka.

a) Reservation in admission to educational institutions.

b) Educational concessions.

It was also directed that no penal or disciplinary action shall be taken and prosecution if

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any launched shall be kept in abeyance and shall not be pursued against persons belonging to these communities for having obtained caste certificates as belonging to ‘Nayaka’ community. Suspension orders if any in such cases shall be revoked and persons retrenched if any shall be reinstated.

GOVERNMENT ORDER NO: SWD 713 SAD 93, BANGALORE, DATED:

llTH MARCH, 2002

In partial modification of Government Order read at (1) and (2) Government are pleased to order as under;

1. The benefits of reservation in admission to educational institutions and educational concessions extended to Pariwara, Talwara, Maaleru, communities in G.Os read at (1) and (2) and Besta and Koli Communities accordingly cease. All persons of these communities who have obtained ST caste certificates shall surrender them immediately to the issuing authority for cancellation. They shall not be liable for penal action provided they surrender their certificates. The issuing authority shall cancel such certificates.

2. Whether it comes to the notice of the appointing authority that ST certificate has been issued to a persons belonging to these communities and which has not been surrendered or cancelled necessary action shall be taken for cancellation of such certificate by the issuing authority, with due regard to the principles of justice.

The benefits of reservation obtained by the persons in para (1) in educational and employment based on the wrong caste certificate issued by the competent authorities as ST and which have become final may also be not disturbed accordingly.

1. Enquires pending before the various Departments, Verification Committee, Appellate authorities, CRE cell and other authorities stands abated or dropped.

2. Action shall be taken to withdraw the cases filed before any court.

3. Suspension orders if any in such cases stands revoked.

4. Pensionary benefits that are withheld shall be released.”

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There is no case of the appellant that she surrendered

her certificate after 2001 when the findings went against her.

Therefore, the appellant cannot have a cause of action based

on the said order also.

16. The High Court has proceeded on the basis that it is

futile to have given the appellant an opportunity before the

order of termination. True, the principles of natural justice

have been highlighted by the appellant which is a part of the

mandate of Article 14 itself. However, an exception to the

principle would be a case where it is entirely futile to

provide an opportunity. Giving an opportunity to the appellant

under the circumstances in question when the finding as

regards her not belonging to the Scheduled Tribe has become

final, in our view would have been a futile exercise. No other

course could have been adopted by the employer in the

circumstances concerned. We are of the view that keeping in

mind the fact that her continuance in service would deprive a

member of the Scheduled Tribe community of an opportunity

which was usurped by the appellant in the first place would

be sufficient answer to the case that it would not have been

a futile exercise. The termination of service of the appellant

in the face of the finality attained regarding her not

belonging to Scheduled Tribe community is a crucial fact which

deprives an employer of any discretion in the matter of

terminating her services. At the time of the termination of

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service, the appellant was 40 years. It is not as if the

appellant was on the verge of retirement. Being voidable under

Section 4(4) of the Act, and bereft of any choice, the facts

not being in dispute, and to allow an usurper to continue

being a palpable illegality and a constitutional sin, in the

context, action by the competent authority terminating the

services is perfectly valid. Therefore, we do not agree with

the argument that the order of termination was bad in law.

17. As far as the argument that Rule 7B does not empower the

employer to recover the allowances is concerned, we are not

inclined to accept the same. We notice that the Rule is widely

worded. The words ‘financial benefits’ and ‘allowances’ would,

at any rate, particularly having regard to the context of the

Act and the object of the Act which is to deter persons who

set up false claims and claim reservation from reaping the

fruits of illegal appointments. We may also notice that

section 10 (2) of the Maharasthra Act which was the subject

matter of the judgment in Chairman and Managing Director, Food

Corporation of India and Others (supra) is a pari materia with

Rule 7B of the Rules. Therefore, we see no merit in this

argument.

18. No doubt, this Court in Chairman and Managing Director,

Food Corporation of India and Others (supra) has been

persuaded by the reasoning that Section 7 is to be read with

Section 10 of the said Act. The Court concluded that there is

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no need to esablish mens rea on the part of the employee in

the matter of securing of appointment. The Court noted that

Section 7 required that it be established that there was

fraud. Such a provision as such which is pari materia with

Section 7 is conspicuous by its absence in the Act and the

Rules.

The fact is that the certificate of the appellant does

not even show that she actually belongs to the Scheduled Tribe

community in question. The authority has found that the family

members of the appellant are shown as belonging to the Talawara

community and in none of the caste certificates it is shown

that any of her relatives belongs to the Scheduled Tribe

community in question. All her relatives were ‘Talawara’ by

caste. We do not think we should accede to the said argument.

She did not also surrender the certificate also. The appellant

even perseveres in her claim in the special leave petition

that she belongs to ‘Tokare Koli’, (the scheduled tribe in

question) even after cancellation of her certificate has

attained finality.

19. The only question which remains is whether the appellant

should be called upon to pay the entire amount which she has

earned on the basis of her appointment. The fact remains that

the appellant has worked and has been paid salary. It is not

conceivable that the appellant would have expended the amounts

which she would have earned. Nor it is a case where she has

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been paid for a period for which she has not worked. There is

an appeal to exercise our powers under Article 142 of the

Constitution made with reference to the judgment in Chairman

and Managing Director, Food Corporation of India and Others

(supra), which power, is undoubtedly not available to the High

Court.

In the circumstances of this case, while finding the

order impugned otherwise flawless, we would think that the

interest of justice would require that we order that the

amounts sought to be recovered shall not be recovered from the

appellant. Thus, while we confirm the impugned order of the

High Court, we direct that in the circumstances of this case,

no recovery shall be made from the appellant based on the

impugned order.

No orders as to costs.

Appeal is disposed of in the above terms.

……………………………………………………………., J.

[ K.M. JOSEPH ]

……………………………………………………………., J.

[ HRISHIKESH ROY ]

New Delhi;

February 22, 2022.

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