Karnataka Scheduled Castes, Scheduled Tribes and Other Backward Classes (Reservation of Appointments, etc.) Act, 1990 – s.4(4) – Respondent-State terminated the services of the appellant on the basis that she was found to be not belonging to the Scheduled Tribe community to which she had applied and was given appointment – Held: s.4(1) of the Act declares that appointment in respect of reserved categories are to be made as provided therein – s.4(4) of the Act provides that appointment made in contravention of s.4(1) is ‘voidable’ – The expression ‘voidable’ in the context and object of the Act and more importantly 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 – Under the Rules, an applicant for appointment seeking reservation is expected to make an application for obtaining a validity certificate of his caste certificate – As appellant secured a caste certificate prior to the enactment of the Act, it required validation under r.7 – Thus, appointment of the appellant was clearly tentative and dependent on her producing the proof of her valid certificate – There is no dispute that the aspect of the appellant not belonging to the Scheduled Tribe community had attained finality for the reason that though the appellant challenged the order of the Scrutiny Committee before the Divisional Commissioner, he had affirmed the order and in fact, there was no challenge to these decisions holding that the appellant did not belong to the Scheduled Caste Community – Once it is found that the appellant did not belong to the Scheduled Tribe community, it attracted s.4(4) – The appointment became voidable – Giving an opportunity to the appellant under these circumstances when the finding as regards her not belonging to the Scheduled Tribe became final, would have been a futile exercise – Her continuance in service would deprive a member of the Schedule Tribe Community of an opportunity which was usurped by the appellant – Thus, order of termination was not bad in law – However, interest of justice would require that the amounts sought to be recovered shall not be recovered from the appellant – Service law – Karnataka Scheduled Castes, Scheduled Tribes and Other Backward Classes (Reservation of Appointment, etc.) Rules, 1992 – r.7.
Disposing of the appeal, the Court
HELD: 1. 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). 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. 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. Furthermore, even the applicants applying under the general categories could be adversely affected. [Paras 7, 9][740-B; 741-E-H; 742-A]
2. 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. 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 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. Therefore, appointment of the appellant was clearly tentative and dependent on the appellant producing the proof of her certificate being valid and genuine. [Paras 11, 12, 13][742-E-H; 743-A-C]
3. 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 would have been a futile exercise. No other course could have been adopted by the employer in the circumstances concerned. 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 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, this Court did not agree with the argument that the order of termination was bad in law. [Para 16][745-D-G]
Chairman and Managing Director, Food Corporation of India and Others v. Jagdish Balaram Bahira and Others 2017 (8) SCC 670 : [2017] 11 SCR 27;
Dhurandhar Prasad Singh v. Jai Prakash University and others (2001) 6 SCC 534 : [2001] 3 SCR 1129 – relied on.
R. v. Paddington Valuation Officer, ex p Peachey Property Corpn. Ltd. (1965) 2 All ER 836 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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