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IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. Subbiah, C. Saravanan, JJ.
The Oriental Insurance Co., Ltd., Represented by its Deputy General Manager, Regional Office, UILK Building, Esplanade, Chennai - Appellant
Versus
P. Vijayalakshmi & Another - Respondent
W.A.No. 949 of 2015 & M.P.No.1 of 2015
Decided On : 26-09-2019
Constitution of India,1950 - Article 311 – Rules 3(1)(i)(iii) & 4(4), (5), (20) ,General Insurance (Discipline, Conduct and Appeal) Rules, 1975 - Quash – Promotion – Petition amend the prayer to issue Writ in the nature of Writ mandamus after calling for the records relating to order bearing ref Nil passed by respondent and Report submitted by respondent and quash same as being illegal, arbitrary without any basis and contrary to order passed this Court consequently direct respondents to settle all terminal benefits due to the petitioner’s superannuation within time frame to be fixed by this Court appellant against post reserved for persons from Schedule Castes/Scheduled Tribe Community - In application for aforesaid post respondent declared that belonged Hindu Scheduled Caste Community and had produced above community certificate opined that crucial test was whether married couple were accepted by member of that caste to which they claim to belong and this can be proved by showing inter—marriage inter-dining community or workshop and dress residence in a particular place and like –Held, Court further observed that position therefore that appellant has usurped the post which should have gone to member of Scheduled Castes - In view of finding recorded by Scrutiny Committee and upheld up to this Court he has disqualified himself to hold post appointment was void from its inception - It cannot be said that said void appointment would enable appellant to claim that he was holding a civil post within meaning of Article Constitution of India - As appellant had obtained appointment by playing a fraud cannot be allowed to take advantage his own fraud in entering service and claim that he was holder of the post entitled to be dealt with in terms Article Constitution of India or Rules framed there - Where an appointment service has been acquired fraud or deceit such an appointment is no appointment in law in service and in such situation Article Constitution is not attracted all Administrative circulars and government resolutions are subservient to legislative mandate and cannot contrary either to constitutional norms or statutory principles - Where a candidate has obtained an appointment to a post on solemn basis that or she belongs to a designated caste tribe or class for whom the post is meant and it is found upon verification by Scrutiny Committee that claim is false services of such an individual cannot protected by taking recourse to administrative circulars or resolutions - Protection claims of a usurper is an act of deviance to constitutional scheme as well as to statutory mandate - No government resolution or circular can override constitutional or statutory norms principle that Government bound by its own circulars well settled but it cannot apply in situation such as the present - Protecting services of candidate who is found not to belong to community tribe for whom the reservation is intended substantially encroaches upon legal rights genuine members reserved communities whose just entitlements are negated by grant of a seat to an ineligible person - In such situation where rights of genuine members of reserved groups or communities are liable to be affected detrimentally government circulars or resolutions cannot operate their detriment –Appeal allowed
JUDGMENT :
C. Saravanan, J.
Prayer: Writ Appeal filed under Clause 15 of Letters Patent against the order dated 09.03.2015 made in W.P.No.3899 of 2013.
The appellant is aggrieved by the impugned order dated 9.3.2015 passed by the learned single judge in W.P.No.3899 of 2013. By the impugned order, the learned single judge has allowed W.P.No.3899 of 2013 filed by the 1st respondent.
2. W.P.No.3899 of 2013 was originally filed by the 1st respondent to quash order bearing reference No. Nil dated 11.6.2012 passed by the 2nd respondent as illegal without any basis arbitrarily and contrary to the order dated 07.08.2009 passed in W.P.No.876 of 2000 and order dated 10.12.2009 in W.P.No.21133 of 2000 and consequently direct the appellant to settle all terminal benefits due to the 1st respondent within a time frame.
3. The 1st respondent later filed M.P.Nos1 to 5 of 2013 in the above writ petition. M.P.No.2 of 2013 to amend the prayer to issue a Writ in the nature of Writ of Certiorarified mandamus after calling for the records relating to the order bearing ref. No. Nil dated 28.02.2013 passed by the 1st respondent and Report dated 11.06.2012 submitted by the 2nd respondent and to quash the same as being illegal, arbitrary without any basis and contrary to the order passed by this Court in W.A.No.873 of 2000 dated 07.08.2009 and W.P.No.21133 of 2000 dated 10.12.2009 and consequently direct the respondents to settle all the terminal benefits due to the petitioner’s superannuation within a time frame to be fixed by this Court.
4. However, the writ petition was allowed without passing any order in M.P.No.2 of 2013 to amend the prayer. Be that as it may, we shall proceed to pass order in the present appeal on merits.
5. The 1st respondent belongs to Vanniya Kula Shatriya Community, a Backward class Community in the State of Tamil Nadu. The 1st respondent married Mr S.B.Palani on 03.06.1977, a person belonging to Hindu Adi Dravida Scheduled Caste Community. The 1st respondent thereafter obtained a Hindu Adi Dravida Scheduled Caste Community certificate dated 02.12.1977 from Tahsildar., Fort Tondiarpet for herself.
6. Later, 1st respondent applied for the post of an Assistant (Typing) with the appellant against post reserved for persons from Schedule Castes/Scheduled Tribe Community. In the application for the aforesaid post, the 1st respondent declared that she belonged to Hindu Adi Dravidar Scheduled Caste Community and had produced the above community certificate.
7. The Tahsildar, Fort Tondiarpet vide letter dated 13.11.1978 in a reply to a query from the District Employment Officer vide letter dated 12.12.1977 had confirmed that the Hindu Adi Dravida Scheduled Caste Community was issued to the 1st respondent in line with the order in Government Letter No. MS 493/BCI/76 dated 11.6.1976.
8. In Government Letter No. MS 493/BCI/76 dated 11.6.1976 issued by the Secretary to the Government, Madras Collectorate, Madras 1, it was clarified that social status of a male/female member of a forward community will not change merely because his or her marriage to a person from backward or scheduled caste community.
9. It was opined that the crucial test was whether the married couple were accepted by the member of that caste to which they claim to belong and this can be proved by showing inter--marriage, inter-dining community or workshop and dress, residence in a particular place and the like.
10. In Government Letter No. MS 493/BCI/76 dated 11.6.1976, the Government was concerned with the community status of one Thirumathi K.S.Ameena Shapir (formerly K.S Meenakshi, a member of Hindu forward community) pursuant to her marriage to person belonging to backward class Labbai Muslim Community in Tamil Nadu.
11. The 1st respondent was later appointed by the appellant vide appointment order dated 22.1.1979. There was no suppression of facts by the 1st respondent either in applying for the community certificate or while getting employed against the post reserved for a per
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