Non-Reportable  

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION CIVIL APPEAL No…9124 of 2017

(Arising out of SLP (C) No.7712 of 2016)

STATE OF ORISSA AND ANR. .... Appellant(s)

Versus BIBHISAN KANHAR

….Respondent(s)

J U D G M E N T

L. NAGESWARA RAO, J.

Leave granted.

The order for removal of the Respondent who was working

as Farash in the office of the Revenue Divisional Commissioner,

Central Division, Cuttack (Second Respondent) was set aside by

the Orissa Administrative Tribunal, Cuttack.   The judgment of

the Tribunal was confirmed by the Division Bench of the High

Court of Orissa at Cuttack.   Aggrieved, the State of Orissa has

filed this Appeal.           

2. The  Revenue  Divisional  Commissioner  requested  the

Employment Officer of the Employment Exchange, Cuttack

to sponsor five candidates belonging to the Schedule Tribe

community and five from unreserved category for selection

and appointment to the posts of Farash and Peon.   On the

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basis of a caste certificate filed by the Respondent in the

Employment  Exchange,  he  was  sponsored  as  a  candidate

belonging  to  a  Schedule  Tribe  community  (Kandha).   The

Respondent was appointed as a Farash in the office of the

Second Respondent.    As there was a doubt raised about the

Respondent belonging to a Schedule Tribe, proceedings were

initiated  before  the  State  Level  Scrutiny  Committee  for

verification of his caste certificate.  He was also placed under

suspension.   After  a  detailed  enquiry,  the  State  Level

Scrutiny  Committee  found  that  the  Respondent  did  not

belong to the “Kandha” tribe.  His caste was “Pano”, which is

a Schedule Caste in the State of Orissa.   The State Level

Scrutiny  Committee  directed  cancellation  of  the  caste

certificate  issued  in  favour  of  the  Respondent  and  also

recommended initiation of criminal prosecution against him.

The Committee further requested the disciplinary authority

to  take  appropriate  action  against  the  Respondent  for

removal  from  service.    After  issuance  of  a  show  cause

notice,  the  Respondent  was  removed from service  by the

Second Appellant.   

3. Initially, the Respondent approached the High Court assailing

the  legality  of  the  order  of  the  State  Level  Scrutiny

Committee  as  well  as  the  order  of  removal.   As  the

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Respondent was a civil servant, the High Court relegated the

Respondent to the Central Administrative Tribunal and also

gave him liberty to question the order passed by the State

Level  Scrutiny  Committee  cancelling  his  caste  certificate.

The Central  Administrative Tribunal  set  aside  the order  of

removal and directed reinstatement of the Respondent. The

reasons given by the Tribunal for allowing the O.A. filed by

the Respondent are that the Respondent was not appointed

in a post reserved for Schedule Tribes and that there was no

material  to  show  that  the  Respondent  forged  the  caste

certificate for the purpose of procuring employment.   The

Writ Petition filed by the Appellants was disposed of by the

High Court confirming the order of the Tribunal.  The High

Court  reiterated  the  direction  issued  by  the  Tribunal  to

reinstate the Respondent.   The High Court further directed

that the Respondent was entitled for back wages at 50 per

cent from 01.09.2014 till the date of his reinstatement.   The

only point that was found in favour of the Respondent by the

High Court is that he was not appointed in a post reserved

for  Schedule  Tribes.   The  Tribunal  and  the  High  Court

directed  the  Respondent  not  to  use  his  Schedule  Tribe

certificate in future.

4. We  have  examined  the  material  on  record  and  the

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submissions made by the learned counsel appearing for the

parties.   We are not in agreement with the judgment of the

Tribunal as confirmed by the High Court that the Respondent

is entitled for reinstatement for the following reasons: a) It is clear from the record that the Respondent was

sponsored  by  the  Employment  Exchange  as  a

candidate belonging to a Schedule Tribe community.

His name would not have been sponsored but for the

certificate which showed that he belongs to Schedule

Tribes community.   b) The  State  Level  Scrutiny  Committee  recorded  a

finding  that  the  Respondent  indulged  in  fraud  in

obtaining a certificate showing that he belongs to a

Schedule Tribe.  The Committee recommended action

to be taken against the officer who had issued the

certificate.   The  order  passed  by  the  State  Level

Scrutiny Committee has become final as it  has not

been set aside by any Court.  

c) Though he was appointed in a post not reserved for

Schedule Tribes, he would not have been in the zone

of consideration if he did not produce the certificate

showing that he belongs to Schedule Tribes.

d) The  Tribunal  has  committed  a  serious  error  in

recording a finding that there is no evidence to show

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that the Respondent has obtained the certificate only

to procure employment.   

e) It  is  clear  from  the  facts  that  the  Respondent

fraudulently  obtained a  certificate showing that  he

belongs to Schedule Tribes community which stands

cancelled  by  the  order  passed  by  the  State  level

scrutiny committee.   

It was held by Denning, L. J.  in Lazarus Estates,

Ltd. v. Beasley (1956) 1 All E.R. 341, 345 that

“No Court will allow a person to keep an advantage

which he has obtained by fraud.  [...] Fraud unravels

everything.   The Court  is  careful  not  to  find fraud

unless it is distinctly pleaded and proved; but once it

is  proved  it  vitiates  judgments,  contracts  and  all

transactions whatsoever”.           

5. For  the  foregoing  reasons,  the  Appeal  is  allowed  and the

judgments of the Tribunal and the High Court are set aside.

No costs.           

              ........................................J                 [S. A. BOBDE]

                  ..……................................J                                                                [L. NAGESWARA RAO]

New Delhi, July 17, 2017

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