BHUBANESWAR DEVELOPMENT AUTHORITYversusMADHUMITA DAS AND ORS.

590                       [2023]
               SUPREME COURT     6 S.C.R. 590
                              REPORTS                     [2023] 6 S.C.R.


A            BHUBANESWAR DEVELOPMENT AUTHORITY
                                       v.
                       MADHUMITA DAS AND ORS.
                        (Civil Appeal No. 3320 of 2023)
B                                 MAY 02, 2023
             [DR. DHANANJAYA Y CHANDRACHUD, CJI AND
                             J B PARDIWALA, J.]
              Service Law – Dismissal from service – Cancellation of caste
      certificate – Respondent obtained employment against a post which
C     was reserved for the Scheduled Caste – Her caste certificate was
      invalidated by the Tehsildar 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 benefit of
      the reservation for persons belonging to the caste of her spouse –
D     Appellant passed an order dismissing the first respondent from the
      service – Single Judge of the High Court directed the appellant to
      reconsider the claim of the first respondent for reinstatement –
      Division Bench dismissed the appeal on the ground of delay of five
      hundred and sixty-four days – On appeal, held: Declining to
      condone delay in the instant case would have serious consequences
E     of allowing an imposter to continue 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 – Division Bench
      ought to have condoned delay – No fault can be found with the
      conduct of the appellant in convening a disciplinary enquiry – The
F     findings of the enquiry was unexceptionable – Punishment imposed
      could not be regarded as disproportionate.
            Chairman and Managing Director, Food Corporation
            of India v. Jagdish Balaram Bahira (2017) 8 SCC 670
            : [2017] 11 SCR 271; Valsamma Paul v. Cochin
            University (1996) 3 SCC 545 : [1996] 1 SCR 128 –
G
            relied on.
            Anjan Kumar v. Union of India (2006) 3 SCC 257 :
            [2006] 2 SCR 208; Solunke v. State of Maharashtra
            (2012) 8 SCC 430 : [2012] 7 SCR 251; Shalini v. New
H
                                      590
  BHUBANESWAR DEVELOPMENT AUTHORITY v. MADHUMITA                             591
                      DAS

      English High School Association (2013) 16 SCC 526 :                    A
      [2013] 12 SCR 807 – referred to.
                        Case Law Reference
[1996] 1 SCR 128                 relied on                  para 6
[2006] 2 SCR 208                 referred to                para 6           B
[2012] 7 SCR 251                 referred to                para 11
[2013] 12 SCR 807                referred to                para 11
[2017] 11 SCR 271                relied on                  para 19
      CIVIL APPELLATE JURISDICTION : Civil Appeal No.3320                    C
of 2023.
      From the Judgment and Order dated 30.10.2019 of the High Court
of Orissa at Cuttack in IA No.625 of 2019.
       Ashok Panigrahi, Nabab Singh, Ms. Geetanjali Das Krishnan, Advs.
for the Appellant.                                                           D
      Animesh Kumar, Neeraj Shekhar, Nishant Kumar, Ms. Aprajita,
Advs. for the Respondents.
      The following Judgment and order of the Court were delivered :
                                JUDGMENT                                     E
      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.
                                                                             F
      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,               G
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   H
592                SUPREME COURT REPORTS                       [2023] 6 S.C.R.


A     marks sheet of the first respondent at the 12th 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
B     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.
C             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
D     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
E     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
F     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.
G
            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,

      1
          (1996) 3 SCC 545
      2
H         (2006) 3 SCC 257
     BHUBANESWAR DEVELOPMENT AUTHORITY v. MADHUMITA                              593
         DAS [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

the disciplinary authority proposed to dismiss the first respondent from         A
service and recover the salary which was paid to her upon the 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       B
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         C
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   D
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           E
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         F
with a delay on five hundred 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.                                                                       G
       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
3
    (2012) 8 SCC 430
4
    (2013) 16 SCC 526                                                            H
594            SUPREME COURT REPORTS                           [2023] 6 S.C.R.


A     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
B
      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
C     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
D     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 this Court in
E     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
F     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:
G
            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
H
     BHUBANESWAR DEVELOPMENT AUTHORITY v. MADHUMITA                            595
         DAS [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

         of the status of Scheduled Caste etc. by voluntary mobility into      A
         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-         B
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.                           C

       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. 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           D
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          E
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       F
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.                    G
       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
5
    (2017) 8 SCC 670                                                           H
596             SUPREME COURT REPORTS                            [2023] 6 S.C.R.


A     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
B            civil consequence of withdrawing the benefits which have 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,
C            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
D            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)
E     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
F     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
G     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 direction for
H
  BHUBANESWAR DEVELOPMENT AUTHORITY v. MADHUMITA                                597
      DAS [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

reconsideration of the claim of the first respondent for reinstatement.         A
       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,   B
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.
                                                                                C
      26. Pending applications, if any, stand disposed of.
                                   ORDER
      1. Leave granted.
     2. This appeal arises from a judgment of a Division Bench of the
                                                                                D
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            E
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,          F
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.
       6. The Tehsildar issued notice to show cause to the first respondent     G
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.
                                                                                H
598             SUPREME COURT REPORTS                            [2023] 6 S.C.R.


A            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 University6 and Anjan Kumar vs Union of India7, the
      Tehsildar rejected the submissions of the first respondent that as a result
B
      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
C     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
D     2012, a copy of which was served on the first respondent in order to
      furnish an opportunity of 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
E     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
F     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
G     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 & Ors8 and Shalini Vs New English High School Assn
      6
        (1996) 3 SCC 545
      7
        (2006) 3 SCC 257
      8
        (2012) 8 SCC 430
H
     BHUBANESWAR DEVELOPMENT AUTHORITY v. MADHUMITA                             599
         DAS [DR. DHANANJAYA Y CHANDRACHUD, CJI ]

& Ors9. However, the single Judge directed that if the first respondent         A
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.                                                      B
       17. 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. We are of the considered view
that the Division Bench ought to have condoned the delay in the facts of        C
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         D
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         E
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.                                                               F
      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          G
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 securing employment against
9
    (2013) 16 SCC 526
10
     (2017) 8 SCC 670                                                           H
600                SUPREME COURT REPORTS                         [2023] 6 S.C.R.


A     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
B     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
C     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
D     by the first respondent shall stand dismissed.
            23. Pending applications, if any, stand disposed of.

      Ankit Gyan                                                 Matters disposed of.


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