Full Judgment Text
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CASE NO.:
Appeal (civil) 231 of 2007
PETITIONER:
State of Maharashtra & Ors
RESPONDENT:
Sanjay K. Nimje
DATE OF JUDGMENT: 16/01/2007
BENCH:
S.B. Sinha & Markandey Katju
JUDGMENT:
J U D G M E N T
(Arising out of SLP(C) No. 6581 of 2006)
S.B. Sinha, J.
Leave granted.
This appeal is directed against a judgment and order dated 19.08.2005
passed by a Division Bench of the High Court of Judicature of Bombay in
Writ Petition No. 4158 of 2005 whereby and whereunder the writ petition
filed by the respondent herein was allowed.
Respondent was appointed in the services of the Government of
Maharashtra on 29.06.1995. Respondent claimed to be belonging to Halba
community, a scheduled tribe. The caste certificate procured by the
respondent from the competent officer having been doubted, the matter was
referred to the Caste Certificate Scrutiny Committee, Nagpur on 27.08.1999
for verification. The respondent was found to be belonging to ’Koshti’ caste
which comes within the category of ’special backward class’ and not within
the scheduled tribe category.
The question as to whether ’Koshti \026 Halbas’ are members of the
Scheduled Tribe or not came up for consideration before this Court in State
of Maharashtra v. Milind and Others [(2001) 1 SCC 4], wherein it was held
that they were not.
In view of the finding of fact that the respondent herein was not a
member of the scheduled tribe but was a ’Koshti’, his caste certificate was
invalidated by an order dated 24.06.2004.
A writ petition thereafter was filed by the respondent before the High
Court praying inter alia for the following reliefs:
"A) That by passing a suitable writ, order or
direction in the nature of mandamus or certiorari or
any other appropriate writ, order or direction, a
quash and set aside the order \005dated 24.6.2004
passed by the Respondent No. 2 Committee
invalidating the tribe claim of Petitioner that he
belongs to Halba, Scheduled Tribe.
B) It be held and declared that in view of
Government Resolutions dated 15.6.1995 and
30.6.2004 the services of Petitioner’s are liable to
be protected thereby issuing such order to the
Respondent No. 2 and 3.
C) During the pendency of present petition by
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passing an order ad interim in nature stay the
effect, operation and implementation of the order
\005dated 24.6.2004 invalidating tribe claim of
Petitioner and/ or in the alternative restrain the
Respondents No. 1 and 3 from passing any adverse
order consequent upon invalidation of tribe claim
of petitioner by Respondent No. 2 Committee."
It appears that the respondent accepted the findings of the Caste
Scrutiny Committee. However, relying on or on the basis of a purported
government resolution dated 15.06.1995 whereby and whereunder the
services of persons who were appointed prior thereto were sought to be
protected, the Division Bench of the High Court by reason of the impugned
judgment directed that although the respondent was appointed on
29.06.1995, having regard to the fact that he had been selected on
15.06.1995, he was entitled to protection in terms of the said resolution
stating:
"5. In the present case the Petitioner was
selected on 15th June, 1995 and got the
appointment order on 29th June, 1995. Since
Maruti Sandipan Jadhav the Petitioner in Writ
Petition No. 422 of 1997, is entitled to get the
benefit under the Government Resolution dated
15th June, 1995 the same principle should be
applied to the Petitioner in the present petition.
6. In the result, the petition is allowed. The
impugned order of dismissal dated 27th May 2005
is quashed and set aside. The Respondents are
directed to reinstate the Petitioner with continuity
of service but without back wages and to
regularize his service in the light of the
Government Resolution dated 15th June, 1995\005"
Mr. S.S. Shinde, learned counsel appearing on behalf of the
appellants, would submit that having regard to the decision of the Caste
Scrutiny Committee, the impugned judgment cannot be sustained
particularly in view of the fact that he was appointed on 29.06.1995.
Mr. Manish Pitale, learned counsel appearing on behalf of the
respondent, on the other hand, would submit that in a case of this nature and
particularly in view of the fact that the question as to whether ’Koshti-
Halbas’ are the members of the scheduled tribe or not had authoritatively
been pronounced only in Milind (supra); this Court may protect the services
of the respondent. Reliance in this behalf has been placed in a similar case
in Civil Appeal No. 3375 of 2000 decided on 12.12.2000, which is in the
following terms:
"The appellant having belonged to Koshti caste
claimed to be included in the scheduled tribe of
Halba and obtained an appointment as Assistant
Engineer. When his appointment was sought to be
terminated on the basis that he did not belong to
scheduled tribe by the Government a writ petition
was filed before the High Court challenging that
order which was allowed. That order is questioned
in this appeal. The questions arising in this case
are covered by the decision in State of Maharashtra
Vs. Milind & Ors. 2000 (7) SCALE 628 and was
got to be allowed, however, the benefits derived
till now shall be available to the appellant to the
effect that his appointment as Assistant Engineer
shall stand protected but no further. The appeal is
disposed of accordingly."
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Indisputably, the State of Maharashtra enacted "Maharashtra
Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis),
Nomadic Tribes, Other Backward Classes and Special Backward Category
(Regulation of Issuance and Verification of) Caste Certificate Act, 2000 (for
short "the 2000 Act"). Section 6 of the 2000 Act laid down the procedure
for the verification of caste certificate. Section 7 thereof provides for
confiscation and cancellation of a caste certificate in the event the same
appears to be false. Section 10 provides for withdrawal of the benefits
secured on the basis of the false caste certificate in the following terms:
"10. Benefits secured on the basis of false Caste
Certificate to be withdrawn. \026 (1) Whoever not
being a person belonging to any of the Scheduled
Castes, Scheduled Tribes, De-notified Tribes,
(Vimukta Jatis), Nomadic Tribes, Other Backward
Classes or Special Backward Category secures
admission in any educational institution against a
seat reserved for such Castes, Tribes or Classes, or
secures any appointment in the Government, local
authority or in any other Company or Corporation,
owned or controlled by the Government or in any
Government aided institution or Co-operative
Society against a post reserved for such Castes,
Tribes or Classes by producing a false Caste
Certificate shall, on cancellation of the Caste
Certificate by the Scrutiny Committee, be liable to
be debarred from the concerned educational
institution, or as the case may be, discharged from
the said employment forthwith and any other
benefits enjoyed or derived by virtue of such
admission or appointment by such person as
aforesaid shall be withdrawn forthwith.
(2) Any amount paid to such person by the
Government or any other agency by way of
scholarship, grant, allowance or other financial
benefit shall be recovered from such person as an
arrear of land revenue.
(3) Notwithstanding anything contained in
any Act for the time being in force, any Degree,
Diploma or any other educational qualification
acquired by such person after securing admission
in any educational institution on the basis of a
Caste Certificate which is subsequently proved to
be false shall also stand cancelled, on cancellation
of such Caste Certificate, by the Scrutiny
Committee.
(4) Notwithstanding anything contained in
any law for the time being in force, a person shall
be disqualified for being a member of any statutory
body if he had contested the election for local
authority, Co-operative Society or any statutory
body on the seat reserved for any of Scheduled
Castes, Scheduled Tribes, De-notified Tribes
(Vimukta Jatis), Nomadic Tribes, Other Backward
Classes or Special Backward Category by
procuring a false Caste Certificate as belonging to
such Caste, Tribe or Class on such false Caste
Certificate being cancelled by the Scrutiny
Committee, and any benefits obtained by such
person shall be recoverable as arrears of land
revenue and the election of such person shall be
deemed to have been terminated retrospectively."
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The Caste Scrutiny Committee was initially constituted in terms of the
decision of this Court in Kumari Madhuri Patil & Anr. v. Additional
Commissioner, Tribal Development & Ors. [(1994) 6 SCC 241]. The
Committee which was now constituted in terms of the 2000 Act issued a
notice upon the respondent. He was given an opportunity of hearing. The
principles of natural justice had, thus, been complied with. The Caste
Scrutiny Committee opined that the respondent failed to prove that his socio-
cultural traits, characteristics, festivals and customs match with those of
Halba, Scheduled Tribe community. It was found that the father of the
respondent himself had given details of his family tree as also socio-cultural
traits which categorically showed that the respondent was not a member of
the Scheduled Tribe community. Even the primary school leaving certificate
of the respondent’s father clearly showed that they belonged to ’Koshti’. It
was ordered:
"After considering all the documents and facts and
in exercise of the powers vested vide Government
Resolutions quoted in the preamble at Sr.No.1, the
Caste Scrutiny Committee has come to the
conclusion that Shri Sanjay Krushnarao Nimje
does not belong to the Halba Scheduled Tribe
hence his claim towards the same is held invalid.
His caste certificate granted by the Executive
Magistrate, Nagpur vide R.C.No.287/MRC-81/88-
89, dated 1.9.88 is hereby cancelled confiscated."
It is accepted that an undertaking was filed by the respondent
accepting the order passed by Appellant No. 3 \026 Committee before the High
Court in the following terms:
"The Petitioner is filing this pursis/undertaking
that he accepts the order passed by the Respondent
No.2 Scrutiny Committee and further undertakes
that he or his legal heirs/progeny will not claim
any benefit as a schedule Tribe Candidate either in
education or in employment.
In view of the Government Resolution dated
15.6.1995 and the judgment of this Hon’ble Court,
filed along with this petition as Annexure T, the
services of the Petitioner be protected and he may
be continued in service by giving specific
directions to the Respondent employer."
Indisputably, on 7.12.1994, ’Koshtis’ were declared to be as Special
Backward Class category. By reason of the said Government Resolution
dated 15.06.1995, it was directed:
"The reservation as aforesaid given to Special
Backward Class category is applicable to direct
recruitment and promotions and the Creamy layer
criteria is not applicable to this category. The
persons from this category who have entered into
service and has obtained promotion on the basis of
Schedule Tribe Certificates, they should not be
reverted or terminated from service."
Respondent admittedly was appointed on 29.06.1995. Although he
might have been selected on 15.06.1995, ex facie, the said Government
Resolution dated 15.06.1995 would have no application in his case.
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Once the respondent became disentitled to obtain the benefit of the
said Government Resolution dated 15.06.1995, the 2000 Act will apply in
his case.
The 2000 Act being a legislative Act would prevail over any
Government Resolution. A Government Resolution may be beneficient in
nature but it is well-settled that a benefit under a Government Resolution
cannot be extended to a person who does not satisfy the conditions precedent
thereof.
In any event, the effect of the judgment of this Court as also the
provisions of a statute in the light of the constitutional provisions contained
in Articles 341 and 342 of the Constitution of India cannot be diluted by
reason of a Government Resolution or otherwise.
The extent of jurisdiction of the Caste Scrutiny Committee came up
for consideration before this Court in State of Maharashtra and Others v.
Ravi Prakash Babulalsing Parmar & Anr. [2006 (10) SCALE 575 : 2007 (1)
SCC 80] wherein this Court categorically held that the Caste Scrutiny
Committee has the requisite jurisdiction in relation thereto, stating:
"The makers of the Constitution laid emphasis on
equality amongst citizens. Constitution of India
provides for protective discrimination and
reservation so as to enable the disadvantaged
group to come on the same platform as that of the
forward community. If and when a person takes
an undue advantage of the said beneficent
provision of the Constitution by obtaining the
benefits of reservation and other benefits provided
under the Presidential Order although he is not
entitled thereto, he not only plays a fraud on the
society but in effect and substance plays a fraud on
the Constitution. When, therefore, a certificate is
granted to a person who is not otherwise entitled
thereto, it is entirely incorrect to contend that the
State shall be helpless spectator in the matter."
We may also notice that ordinarily a person, who has obtained
appointment on the basis of a false certificate, cannot retain the said benefit.
[See Bank of India and Another v. Avinash D. Mandivikar and Others,
(2005) 7 SCC 690, Ram Saran v. I.G. of Police, CRPF & Ors. 2006 (2)
SCALE 131 and The Superintendent of Post Offices & Ors. v. R. Valasina
Babu, Civil Appeal No. 5868 of 2006, disposed of on 14.12.2006]
In a situation of this nature, whether the court will refuse to exercise
its discretionary jurisdiction under Article 136 of the Constitution of India or
not would depend upon the facts and circumstances of each case. This
aspect of the matter has been considered recently by this Court in Sandeep
Subhash Parate v. State of Maharashtra & Ors. [2006 (8) SCALE 503]
From the order of the Caste Scrutiny Committee itself, it is evident
that the father of the respondent was shown in the primary school register as
belonging to ’Koshti’ caste. They were not members of Scheduled Tribe.
They were not even ’Koshti-Halbas’. It may be true that an authoritative
pronouncement in this behalf came for the first time in Milind (supra), but it
is not a case where the respondent pleaded and proved bona fide.
Respondent was not the member of a tribe. If a person is not a
member of a tribe, the question of the said tribe being a scheduled tribe
would not arise.
Thus, it is a clear case where the provisions of the 2000 Act would
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apply. We see no reason as to why the statutory provisions should not be
directed to apply in the instant case. It may be that at one point of time,
keeping in view of the stand taken in particular case, some indulgence had
been shown. Indulgence might have been shown to the students or who
were found to have acted bona fide but the same would not mean that this
Court would pass an order contrary to or inconsistent with the provisions of
a legislative act.
Our attention was drawn to an order dated 12th December, 2000
passed in Civil Appeal No. 3375 of 2000, but it does not appear the
provisions of the 2000 Act had been brought to the notice of this Court
therein. Furthermore, we are not aware as to the fact involved therein and,
thus, the same cannot be treated to be a precedent.
For the reasons aforementioned, the impugned judgment cannot be
sustained, which is set aside accordingly. The appeal is allowed. In the
facts and circumstances of the case, however, we make no order as to costs.