Terminated twice by UP government, Supreme Court comes to rescue of SC man

New Delhi, Oct 15: In a rare instance, the Supreme Court has come to the rescue of a man belonging to the Scheduled Caste category whose services were terminated twice by the Uttar Pradesh government owing to a dispute over his caste certificate.

The top court, held that the subsequent change in law does not have the effect of reversing all the decisions made prior to the fresh view taken by a court of law.

The Supreme Court in 2013 had upheld an Allahabad High Court order by which Vijay Shankar was reinstated to service with all consequential benefits, holding him as a member of SC category after state government had withdrawn its appeal following a lengthy hearing.

The Uttar Pradesh government, however, in 2015 again dismissed him from service, saying a larger bench of the high court has taken a different view and his caste does not fall under the Schedule Caste category.

Shankar, who belongs to the 'Kasera' community, a sub-caste of 'Shilpkars' which is a SC category notified under the Constitution, challenged the decision once again before the Allahabad High Court, but it dismissed his plea saying that the law has now been changed by a larger bench of the top court.

A bench of justices SA Bobde and L Nageswara Rao said the high court in its judgment, dated August 12,2015, has completely "misappreciated and misapplied the law".
"The difference between a superior court reversing a decision, which is in appeal before itself, and overruling the view is well known," it said.

The court directed the Uttar Pradesh government to immediately release the withheld pension and other retirement benefits of Shankar, who superannuated from the post of assistant prosecution officer during his second termination period.

The court, while allowing the appeal of Shankar, set aside the high court order of August 2015, rejecting his plea and his dismissal order of June 15, 2015.

"If a point is settled inter-parties and there is a subsequent change in the law because the court takes a different view, the change in a law does not have the effect of unsettling the rights settled earlier. "The subsequent change in a law does not have the effect of reversing all the decisions made prior to the fresh view," the bench said.

It said in the present case, Shankar's rights were settled by the earlier high court judgment of December 23, 2011, which was upheld when the appeal of the state government was dismissed as withdrawn by the court.

The court said it was not permissible for the principal secretary, home department, to rely upon the subsequent contrary decision and dismiss the appellant (Shankar) from service again.

The ordeal of Shankar, who joined the service in 1991 as assistant prosection officer, started when he was terminated on May 21, 2007, by the state government on the ground that he has obtained the job by submitting a forged Scheduled Caste certificate.

It was found that Shankar's caste was recorded as 'Kasera' in his school certificate, which according to the state government was not a SC category.

Shankar, first challenged his dismissal order before the Uttar Pradesh State Public Services Tribunal, which granted him relief by setting aside the punishment order and reinstated him with all consequential service benefits and continuity in service.

The tribunal also observed that 'Kasera' is a sub-caste of 'Shilpkar' as per a government order dated December 12,1950. It said there are 26 sub castes of 'Shilpkar' and that 'Kasera' was one of them. Thus, 'Kasera' being a sub-caste of 'Shilpkar' comes under the category of Scheduled Caste, the tribunal said.

Aggrieved by the tribunal's order, the Uttar Pradesh government moved the Allahabad High Court that on December 23, 2011, upheld the tribunal's order, saying the caste of his parents as per the National Citizen Register, was found to be 'Shilpkar', which is a Scheduled Caste.

The state government, then moved the apex court where after a lengthy hearing, the appeal was withdrawn and the order of the high court reinstating Shankar was upheld.

The problem started thereafter as in a separate case, a full bench of the high court on May 29, 2014, held that the 'Kasera' caste did not fall under the Schedule Caste category and the order given in Shankar's case was wrong in law.

Relying on the full bench order of the high court, the government again dismissed Shankar's case, saying the law has now changed and his caste does not fall under schedule caste category.

Shankar, then filed the appeal before the SC against the order of the high court dismissing his petition against the second dismissal order.