Archana Mourya Vs Madhya Pradesh Bhoj Open University

@JUDGMENTTAG-ORDER

K.K. Trivedi, J.

This writ petition under Article 226 of the Constitution of India is directed against an action of Respondent-University of initiating an enquiry and calling her explanation with respect to obtaining the caste certificate, on the grounds that such an enquiry cannot be initiated or conducted by the Respondent- University or its authorities in view of the law laid down by the Apex Court as the verification of the caste certificate is required to be done by a High Power Screening Committee. It is further contended by the petitioner that to verify about the caste of the petitioner, only the Committee constituted by the State Government in terms of the directives of the Apex Court is the competent authority and, as such, initiation of such a proceeding by the respondent is per se illegal and is liable to be quashed. The petitioner has claimed the relief to the effect that by an appropriate writ this Court may declare that the decision taken by the respondent to cancel the appointment of petitioner mentioned in the letter dated 2-12-2005, is illegal and not sustainable in the eye of law. A further relief is claimed to the effect that the respondent be restrained to cancel the appointment of petitioner made pursuant to selection held on 27-5-2003 and by an appropriate writ the respondent be commanded to permit the petitioner to continue on the post of Computer Operator regularly and without any obstruction or hindrance.

Briefly stated facts of the case are that the petitioner belongs to the General category, but she got married to a member of Scheduled Caste community. It is the case of the petitioner that she has obtained a degree of Graduation in Science in the year 1993 from Barkatulla University, did her Post Graduation in Computer Application in the year 1995 from the very same University. The respondent had invited applications for appointment on the post of Computer Operator. The petitioner submitted her application along with the relevant documents, she claims to be entitled for grant of benefit of reservation as member of Scheduled Caste. The application of the petitioner was scrutinised, she was called for interview and, thereafter, the selection was made. It is contended by the petitioner that she submitted the certificate of caste of her husband indicating that she too belongs to Scheduled Caste community after marriage with the said person. The petitioner was selected and later was given an order of appointment on 4-6-2003 by the respondent. The petitioner joined the post and started working continuously and uninterruptedly. All of a sudden on 2-12-2005, the petitioner was communicated a notice by the respondent indicating therein that the petitioner was appointed against a post which was reserved for the Scheduled Caste category, whereas, the petitioner belongs to General category. It was alleged that the appointment of the petitioner was illegal and, therefore, a decision has been taken to cancel the same. The petitioner was called upon to submit her explanation within fifteen days. Such a letter issued to the petitioner is produced with the petition as Annexure-P/5 and this letter is impugned in the writ petition.

The stand taken by the petitioner is further that she submitted the explanation and put all the material which were in her possession for consideration before the authorities of respondent. It was categorically pointed out by the petitioner that she has not obtained any employment by practising fraud. Right from the very beginning, the fact was stated by the petitioner that after her marriage, the caste status of the petitioner was changed because she married to a person belonging to Scheduled Caste Community. It was pointed out by the petitioner that this fact was well stated before making appointment on the post, by submitting the application and at that time, the authorities of the respondent were satisfied that the petitioner belongs to Scheduled Caste community. However, for a long period, nothing was communicated and on 6-7-2007, the petitioner was called in the office of Registrar of the respondent and was told that her reply was not satisfactory, therefore, the petitioner may submit additional reply or the final order will be passed. Thus, it is contended by the petitioner that without holding any enquiry, as is required under the directives of the Apex Court given in the case of Kumari Madhuri Patila and another Vs. Addl. Commissioner, Tribal Development and others, it could not have been said that the petitioner was not entitled to the benefit of reservation. It has been categorically said that all the State Government shall constitute a committee of three officers, namely; (i) an Additional or Joint Secretary or any Officer higher in rank of the Director of the concerned department; (ii) the Director Social Welfare/Tribal Welfare/Backward Class Welfare as the case may be and (iii) in the case of Scheduled Caste another Officer who has intimate knowledge in the verification and issuance of the social status certificate. In the case of Scheduled Tribe, the Research Officer, who has intimate knowledge in identifying the tribes, tribal community parts or groups of tribes or tribal communities be included in the Committee. Thus, it is contended that the respondent or its officials were not authorised by the Apex Court to conduct any such enquiry with respect to the social status of the petitioner in a particular caste and, as such, the entire proceedings initiated against the petitioner by the respondent were liable to be quashed.

Per contra, it has been contended by the respondent that the petitioner has mislead the respondent by giving an application indicating that she belongs to Scheduled Caste community, for securing an appointment in the establishment of Respondent-University. It is contended that when the advertisement was issued vide Annx.R/1 filed along with the return, the post was categorically mentioned in the particular category. The advertisement itself was issued to fill in the vacancies available in the backlog of reserved category under a special drive of recruitment. Since the petitioner was one who belongs to General category, therefore, she was not competent or eligible to make any application for appointment in the said drive. Only because the petitioner has married to a member of the Scheduled Caste, the social status of the petitioner would not automatically change and by virtue of the marriage, the petitioner will not get the benefit of reservation available for the Scheduled Caste community. It is contended that the enquiry was ordered, the petitioner was called upon, the show cause notice was given, her explanation was considered, but before the enquiry could result in finality, the petitioner rushed to this Court, filed the present writ petition and obtained an interim injunction against the respondent. As such, the enquiry could not be completed and the petitioner is, thus, enjoying the post though for the same she is not eligible or entitled. It is, thus, contended that the writ petition of the petitioner is liable to be dismissed. An application for vacating interim stay was also moved and the matter was heard at length on consideration of such application.

With the consent of the learned counsel for the parties, since the matter is heard at length, the petition is being disposed of finally by this order.

Learned counsel for the respondent has heavily relied on the case of Anjum Kumar v. Union of India and others, AIR 2006 SCW 888. It is contended by the learned counsel for the respondent relying on the findings given by the Apex Court in paras 9 and 14 of the report that considering the objects of Article 341, 342, 15(4), 16(4) and 16(4a) of the Constitution of India, which are to provide preferential treatment for the Scheduled Caste and Scheduled Tribe, having regard to the economic and educational backwardness and other disabilities wherefrom they suffer. It is contended that in view of the catena of decisions of the Apex Court, the question raised with respect to verification of caste were no more res Integra. It is contended that the condition precedent for granting tribe certificate being that one must suffered disabilities wherefrom one belong. Thus, it is said that in view of the law laid down by the Apex Court in the case of Anjum Kumar (supra), no relief whatsoever can be granted to the petitioner and her writ petition is, thus, liable to be dismissed.

Retaliating to such a contention raised by the respondent, learned Senior Advocate for the petitioner has put his reliance heavily in the case of N.E. Horo Vs. Smt. Jahanara Jaipal Singh, and it has been contended that though right from very beginning, it was held by the Apex Court that reservation of a particular seat/appointment on a post is for certain reasons and a declaration is required to be made to the effect that such conditions under which reservation is prescribed are fulfilled. It is the power of the President of India to specify the tribes or tribal community or other reserved categories. However, the tribal community or the reservation has a wider connotation than the expression ''tribes''. In paragraph 23 of the report, the Apex Court while dealing with the change of status because of marriage, has held thus :--

Where a non-Munda woman is married to a Munda male and the marriage is approved and sanctioned by the Parha Panchayat of that tribe and the marriage is valid she may not, on the assumption that the rule of endogamy prevails, become a member of the Munda tribe in the strict sense as not having been born in the tribe. She cannot, however, be excluded from the larger group, namely, the tribal community. The High Court has taken the view that the use of the term "tribal communities" in addition to the term "tribes" in Article 342 shows that a wide import and meaning should be given to these words and even if the respondent is not a member of the Munda tribe by virtue of birth she having been married to a Munda after due observance of all formalities and after obtaining the approval of the elders of the tribes would belong to the tribal community to which her husband belongs on the analogy of the wife taking the husband''s domicile. Even without invoking the doctrine of domicile the respondent''s marriage with late Shri Jaipal Singh who was a Munda having been approved and sanctioned by the Parha Panchayat of the Munda tribe it can well be said that she became a member of the Munda tribal community. We have not been shown any infirmity in the reasoning of the High Court on this point. When a person, in the course of time, has been assimilated in the community it is somewhat difficult to comprehend how that person can be denied the rights and privileges which may be conferred on that community even though tribal by constitutional provisions.

It is, thus, contended that in view of this law, it was necessary to hold an enquiry whether the status of the petitioner prior to her marriage to a Scheduled Caste community person was the same, identical or lower in the status than the member of the Scheduled Caste and whether she has been accepted by the said community as a member of that community. According to learned Senior counsel, again such type of enquiry is required to be conducted only and only by the High Power Screening Committee under the directives of the Apex Court and not by the authorities of the respondent. After the decision in the case of Ku. Madhuri Patil (supra), it is vehemently contended by the learned Senior Counsel, there is no scope left for conducting enquiry in the matters of tribes or Scheduled Caste community by any other authorities except this High Power Screening Committee. The said Committee is not only clothe with powers of recording evidence, it is contended that, it has the right to inspect, examine and then make a declaration. Therefore, according to learned Senior Counsel for the petitioner having failed to refer the matter to the High Power Screening Committee and resorting to an action to remove the petitioner in such manner, was not acceptable in the eye of law and, thus, the action taken by the respondent was liable to be quashed.

On due consideration of the law laid down by the Apex Court, the allegations made against the petitioner, the reply submitted by her, this Court is of the considered opinion that in fact for the verification of the caste of the petitioner, the validity of the certificate which she has produced was only to be examined. The certificate produced by the petitioner was of her husband and no certificate of caste was produced by her. The claim made by the petitioner was that since she has married to a Scheduled Caste person, as per the Hindu Law, after the marriage, the petitioner''s pre marital status has gone and merged in the status of her husband. That being so, whether the status of the petitioner, the financial conditions, all other aspects on account of which reservation has been extended to certain reserved categories were available or not, were similar to the status of a Scheduled Caste community or not and whether the petitioner was ever accepted as a member of that community after her marriage or not, was required to be examined and a report was required to be given in that respect. In the considered opinion of this Court, as per the law laid down by the Apex Court in the case of Ku. Madhuri Patil (supra), this can be done only and only by a High Power Screening Committee. The respondent was not right in initiating the process in this respect. It was open to the respondent to refer the matter to the High Power Screening Committee for examination. It was not a case of fraud even as right from very beginning, the petitioner has disclosed the fact that she belongs to General category before marriage, but her status of caste was changed after her marriage with a Scheduled Caste community person. Therefore, at the hands of respondent enquiry was not competent and it was to be conducted by the High Power Screening Committee. The Apex Court in the case of State of Maharashtra and Others Vs. Ravi Prakash Babulalsing Parmar and Another, has categorically held the importance of High Power Screening Committee and in paragraph 12 of the report it is said that "the Caste Scrutiny Committee is the quasi judicial body. It has been set up for a specific purpose. It serves social and Constitutional purposes. It is constituted to prevent fraud on the Constitution. It may not be bound by the provisions of the Indian Evidence Act, but it would not be correct for the superior Court to issue direction as to how it should appreciate evidence. Evidence to be adduced in a matter before quasi judicial body cannot be restricted to admission of documentary evidence only. It may out of necessity to take oral evidence." Thus, it is the authority of the High Power Screening Committee, one which is constituted within the State to verify the correctness of the claim made with respect to grant of certain privileges under the Reservation Policy of the State to any person even in the matter of employment in services. Therefore, it was necessary on the part of the respondent to refer the matter to the said High Power Screening Committee for giving its finding and then only initiate any action against the petitioner for cancellation of her appointment after receipt of the report from the said High Power Screening Committee. Therefore, the action initiated by the respondent on its own without referring the matter to the High Power Screening Committee cannot be affirmed by this Court.

Resultantly, the writ petition succeeds and is allowed. The show cause notice issued against the petitioner and proceedings initiated on the basis of such show cause notice dated 2-12-2005 are quashed. The respondent is directed to refer the matter to the High Power Screening Committee for the purposes of verification of the caste status of the petitioner and to send a report to the respondent for taking action, according to law, against the petitioner.

Accordingly, the writ petition stands allowed to the extent indicated hereinabove, but with no order as to costs.