Holding

The appointment was voidable under Section 4(4) of the Act, making the termination valid, but the Court barred any recovery of the amounts paid to the appellant.

Summary

Jayashree was appointed to a civil post in Karnataka under the Scheduled Tribe reservation based on a caste certificate obtained before the enactment of the Karnataka SC/ST OBC Reservation Act, 1990. Subsequent scrutiny found that she did not belong to the Scheduled Tribe community and she had not produced a validity certificate required under Rule 7 of the 1992 Rules, rendering her appointment tentative. The State terminated her service invoking Section 4(4) of the Act, which declares such contraventions voidable. The Supreme Court held that the termination was legally valid, as the appointment was voidable and the finding of ineligibility was final, making any further hearing futile. However, the Court ordered that no monetary recovery of the salary and allowances she had received should be imposed, deeming it an exercise of justice.

Issues considered

Whether an appointment made in contravention of Section 4(1) of the Karnataka SC/ST OBC Reservation Act, 1990 is voidable under Section 4(4) and can be terminated without prior notice.
Whether the principles of natural justice require an opportunity to be heard before terminating a voidable appointment when the finding of non‑eligibility is final.
Whether the amounts received by the appellant as salary and allowances can be recovered under Rule 7B of the 1992 Rules.
Interpretation of the term ‘voidable’ versus ‘void’ in the context of the Act.

Legislation cited

Karnataka Scheduled Castes, Scheduled Tribes and Other Backward Classes (Reservation of Appointment, etc.) Rules, 1992s. Rule 7, s. Rule 7B, s. Rule 9
Karnataka Scheduled Castes, Scheduled Tribes and Other Backward Classes (Reservation of Appointments, etc.) Act, 1990s. 4(1), s. 4(4)

Subjects

reservationscheduled tribesvoidable appointmentservice terminationnatural justicecaste certificatevalidity certificaterecovery of salaryKarnataka

Judgment

734 SUPREME COURT
[2022]REPORTS
2 S.C.R. 734 [2022] 2 S.C.R.

A JAYASHREE
v.
THE DIRECTOR COLLEGIATE EDUCATION
(Civil Appeal No. 1559 of 2022)
B FEBRUARY 22, 2022
[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]
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
C
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
D 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
E
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
F 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
G
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
H would deprive a member of the Schedule Tribe Community of an
734
JAYASHREE v.THE DIRECTOR COLLEGIATE EDUCATION 735

opportunity which was usurped by the appellant – Thus, order of A
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.
B
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 C
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 D
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 E
‘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 F
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 G
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

H
736 SUPREME COURT REPORTS [2022] 2 S.C.R.

A 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
B
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
C 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
D
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
E 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
F 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
G 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

H
JAYASHREE v.THE DIRECTOR COLLEGIATE EDUCATION 737

by the competent authority terminating the services is perfectly A
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; B
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 C
to.
Case Law Reference
[2017] 11 SCR 271 relied on Para 4
[2001] 3 SCR 1129 relied on Para 9 D
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1559
of 2022.
From the Judgment and Order dated 11.12.2018 of the High Court
of Karnataka, Dharwad Bench in Writ Petition No. 101462 of 2018(S-
KAT). E
S.N. Bhat, Sr. Adv., D.P. Chaturvedi, Tarun Kumar Thakur, Ms.
Parvati Bhat, Ms. Anuradha Mutatkar, Advs. for the Appellant.
V.N. Raghupathy, Adv. for the Respondent.
The Judgment of the Court was delivered by F
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
G
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

H
738 SUPREME COURT REPORTS [2022] 2 S.C.R.

A Tribe community purporting to belong to which the appellant applied and
was given appointment. Further by the impugned order, the appellant
has been called upon to pay the amounts which she has received.
3. Heard Mr. S. N. Bhat, learned senior counsel appearing for the
appellant, and Mr. V. N. Raghupathy, learned counsel appearing for the
B 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)
C 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
D
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
E 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
F 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.”
G 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
H would complain again that no notice was served on the appellant before
JAYASHREE v.THE DIRECTOR COLLEGIATE EDUCATION 739
[K. M. JOSEPH, J.]

the order of termination was issued. He would, undoubtedly, point out A
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’
B
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 C
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
done without following the principles of nature justice, he would point
out that had the appellant been provided with an opportunity, she could D
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
E
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
F
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.
G
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
H
740 SUPREME COURT REPORTS [2022] 2 S.C.R.

A 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.
FINDINGS
7. It is true that section 4(1) of the Act declares that appointment
B 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
C 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:
D “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
E 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.”
F
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
G
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

1
R. v. Paddington Valuation Officer, ex p Peachey Property Corpn. Ltd. [(1965) 2 All
H ER 836 : (1966) 1 QB 380 : (1965) 3 WLR 426 (CA)]
JAYASHREE v.THE DIRECTOR COLLEGIATE EDUCATION 741
[K. M. JOSEPH, J.]

is necessary, law does not take any notice of the same and it can A
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
B
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 C
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
D
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 E
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 F
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 G
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
H
742 SUPREME COURT REPORTS [2022] 2 S.C.R.

A 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
B 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
verification.
C “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.

D

E
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
F 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
G 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
H
JAYASHREE v.THE DIRECTOR COLLEGIATE EDUCATION 743
[K. M. JOSEPH, J.]

that the verification will be done under Rule 7 in connection with the A
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 B
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 C
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 D
Scheduled Tribe community, it attracted Section 4(4). The appointment
became voidable.
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 E
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 F
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 G
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 H
744 SUPREME COURT REPORTS [2022] 2 S.C.R.

A 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.
B It was also directed that no penal or disciplinary action shall
be taken and prosecution if 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
C 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
D (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
E 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.
F 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
G 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
H accordingly.
JAYASHREE v.THE DIRECTOR COLLEGIATE EDUCATION 745
[K. M. JOSEPH, J.]

1. Enquires pending before the various Departments, A
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. B

4. Pensionary benefits that are withheld shall be released.”
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. C
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 D
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 E
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 F
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 G
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 H
746 SUPREME COURT REPORTS [2022] 2 S.C.R.

A 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
B
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
C by the reasoning that Section 7 is to be read with Section 10 of the said
Act. The Court concluded that there is 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
D 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
E 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
F 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
G would have expended the amounts which she would have earned. Nor it
is a case where she has 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),
H which power, is undoubtedly not available to the High Court.
JAYASHREE v.THE DIRECTOR COLLEGIATE EDUCATION 747
[K. M. JOSEPH, J.]

In the circumstances of this case, while finding the order impugned A
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
B
order.
No orders as to costs.
Appeal is disposed of in the above terms.

C
Devika Gujral Appeal disposed of.

D

E

F

G

H