Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5821 OF 2012
(Arising out of S.L.P. (C) No.33716 of 2009)
Kavita Solunke …Appellant
Versus
State of Maharashtra and Ors. …Respondents
J U D G M E N T
T.S. THAKUR, J.
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1. Leave granted.
2. The High Court of Judicature at Bombay has while
dismissing Writ Petition No.1810 of 2008 filed by the
appellant herein refused to interfere with the order dated
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20 February, 2008 passed by the Scheduled Tribe
Certificate Scrutiny Committee, Amravati. The Committee
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in turn had declared that the appellant was a ‘Koshti’ by
Caste and not a ‘Halba’ which is a notified Scheduled Tribe.
The facts giving rise to the present appeal lie in a narrow
compass and may be summarised as under:
Shri Shivaji High School, Dongaon, of which
respondent No.5 happens to be the Head Master, invited
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applications in terms of advertisement dated 20 July, 1995
against three vacant posts of teachers in the said school.
One each of these two posts was reserved for Scheduled
Caste and Scheduled Tribe Candidates. The third post was
ostensibly in open category and required a minimum
qualification of B.P.Ed., which the appellant herein did not
possess. The appellant claiming to be a ‘Halba’ applied for
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the solitary post reserved for the Scheduled Tribe
candidates and was appointed as a low grade co-teacher in
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the pay scale of Rs.1200-2040 with effect from 1 August,
1995 or the date she joined the said post. The appointment
was on probation for an initial period of two years which
was duly approved by the Zila Parishad Education Officer in
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terms of his order dated 12 July, 1996. It is not in dispute
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that the appellant satisfactorily completed the period of
probation and was confirmed in service as an Assistant
Teacher in due course.
A decade after her initial appointment, respondent
No.5 asked the appellant to get her caste credentials
verified from the Scheduled Tribe Certificate Scrutiny
Committee. The appellant complied with the said direction
and submitted her certificate to the Committee concerned,
which in turn forwarded it for a proper vigilance inquiry. In
the course of the said inquiry, the school record of the
appellant was also looked into which showed that the
appellant’s father was a ‘Koshti’ by caste which caste was
not a Scheduled Tribe in Maharashtra.
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The Committee, therefore, concluded that the Caste
Certificate of the appellant was invalid and accordingly
cancelled the same. This led to the school passing an Order
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dated 23 February, 2008 whereby the services of the
appellant were terminated with immediate effect. The
termination Order said:
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“…….. You were appointed on the post reserved for
candidate of Scheduled Tribes. At the time of
appointment you produced certificate showing that you
belong to the category of Scheduled Tribes. There after
the said Certificate was sent for verification to the
Caste Scrutiny Committee. The said Committee after
giving opportunity of hearing and adducing of evidence
decided the enquiry and came to the conclusion that
you do not belong to the category as mentioned in the
certificate produced by you and consequently
invalidated the caste certificate produced by you are
not entitled to continue on the post as the post is
reserved for the candidate of Scheduled Tribes
Community.”
Aggrieved by the above, the appellant filed an appeal
before the School Tribunal under Section 9 of the
Maharashtra Employees of Private School (Condition of
Service) Regulation Act, 1977 which failed and was
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dismissed by the Tribunal by its order dated 25
September, 2008. The appellant then preferred a writ
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petition before the High Court of Nagpur challenging the
order passed by the Scheduled Tribe Certificate Scrutiny
Committee invalidating her caste claim. The High Court saw
no reason to interfere and dismissed the said petition by
the order impugned before us. The High Court observed:
“... neither the petitioner personally nor through her
agent appeared before the Caste Scrutiny Committee
nor submitted any reply to the Vigilance Cell Inquiry
Report. Perusal of the order of Caste Scrutiny
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Committee further reveals that the Vigilance Cell
collected the document dated 18.10.1956 i.e., extract
of School entry in respect of father of the petitioner,
wherein caste of father of the petitioner mentioned as
“Koshti”. Similarly, the another document collected by
the Vigilance Cell further shows that the petitioner does
not belong to “Halba” Scheduled Tribe. Petitioner also
failed to establish affinity with the “Halba” Scheduled
Tribe. In the circumstances, the conclusion arrived at
by the Caste Scrutiny Committee is just and proper and
needs no interference.”
3. The present appeal assails the correctness of the
above order as already noticed.
4. Learned counsel appearing for the appellant raised a
short point before us. He contended that the appointment
of the appellant having attained finality, could not have
been set aside on the ground that Koshti-Halbas were not
‘Halbas’ entitled to the benefit of reservation as Scheduled
Tribes. Relying upon the decision of the Constitution Bench
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of this Court in State of Maharashtra v. Milind (2001) 1
SCC 4 , it was urged by the learned counsel that the
appellant was entitled to the protection of continuance in
service, no matter ‘Halba-Koshtis’ were not recognised as
‘Halbas’ by this Court. The High Court had not, according to
the learned counsel, correctly appreciated the decision of
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this Court in Milind’s case (supra) and thereby fallen in an
error in dismissing the writ petition filed by the appellant.
He also placed reliance upon the Office Memorandum issued
by the Government of India, Ministry of Personnel, Public
Grievances and Pensions, Department of Personnel &
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Training dated 10 August, 2010 whereby protection
against ouster of those appointed in the Scheduled Tribe
category had been extended to persons appointed on the
basis of their being ‘Halba-Koshti’ in the State of
Maharashtra. It was further urged that relying upon the
said subsequent development, this Court had allowed one
Raju Gadekar, a candidate similarly placed as the appellant
to seek the benefit under the circular by moving a suitable
application before the High Court. There was according to
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the learned counsel no reason to take a different view in
the case of the appellant, especially when this Court had
in Milind ’ s case (supra) followed in subsequent decisions,
extended protection against ouster from service to those
appointed in the Scheduled Tribe category on the basis of
the certificates showing the persons appointed to be a
‘Koshti-Halba’ by caste.
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5. On behalf of the respondent, it was urged that the
decision of this Court in Milind’s case (supra) was
distinguishable from the facts of the case at hand inasmuch
as that case dealt with admission to a professional course
and not with appointment to any public office. It was
further argued that the decision of this Court in Milind’s
case (supra) had been explained by this Court in
subsequent decisions including R. Vishwanatha Pillai v.
State of Kerala (2004) 2 SCC 105; State of
Maharashtra v. Sanjay K. Nimje (2007) 14 SCC 481;
Bank of India v. Avinash D. Mandivikar (2005) 7 SCC
690 and Union of India v. Dattatray (2008) 4 SCC 612
and the benefit limited only to cases arising out of
admission to professional courses where the candidate had
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already completed the course and their ouster would result
in no benefit to anyone.
6. In Milind’s case (supra), the Constitution Bench of
this Court was examining whether Koshti was a sub-tribe
within the meaning of Halba/Halbi as appearing in the
Constitution (Scheduled Tribes) Order, 1950. The
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respondent in that case had obtained a Caste Certificate
from the Executive Magistrate to the effect that he
belonged to ‘Halba’ Scheduled Tribe. He was on that basis
selected for appointment to the MBBS Degree Course in the
Government Medical College for the session 1985-86
against a seat reserved for Scheduled Tribe candidates. The
certificate relied upon by the respondent-Milind was sent to
the Scrutiny Committee, the Committee recorded a finding
after inquiry to the effect that the respondent did not
belong to Scheduled Tribe. In an appeal against the said
Order, the Appellate Authority concurred with the view
taken by the Committee and declared that the respondent-
Milind belonged to ‘Koshti Caste’ and not to ‘Halba Caste’
Schedule Tribe.
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7. In a writ petition filed against the said order by Milind,
the High Court held that it was permissible to examine
whether any sub-division of a tribe was a part and parcel of
the tribe mentioned therein and whether ‘Halba-Koshti’ was
a sub-division of the main tribe ‘Halba’ within the meaning
of Entry 19 in the Constitution (Scheduled Tribes) Order,
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1950. The High Court further held that Halba-Koshti was
indeed a sub-tribe of Halba appearing in the Presidential
Order.
8. In an appeal filed against the above order of the High
Court, this Court held that the Courts cannot and should not
expand their jurisdiction while dealing with the question as
to whether a particular caste or sub-caste, tribe or sub-
tribe is included in any one of the Entries mentioned in the
Presidential Orders issued under Articles 341 and 342.
Allowing the State Government or the Courts or other
authorities or tribunals to hold an inquiry as to whether a
particular caste or tribe should be considered as one
included in the Schedule to the Presidential order, when it is
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not so specifically included would lead to problems. This
Court declared that the holding of an inquiry or production
of any evidence to decide or declare whether any tribe or
tribal community or part thereof or a group or part of a
group is included in the general name, even though it is not
specifically found in the entry concerned would not be
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permissible and that the Presidential Order must be read as
it is.
9. Having said so, this Court noticed the stand taken by
the Government on the issue of ‘Halba-Koshti’ from time to
time and the circulars, resolutions, instructions but held
that even though the said circulars, instructions had shown
varying stands taken by the Government from time to time
relating to ‘Halba-Koshti’ yet the power of judicial review
exercised by the High Court did not extend to interfering
with the conclusions of the competent authorities drawn on
the basis of proper and admissible evidence before it. This
Court observed:
“…….The jurisdiction of the High Court would be much
more restricted while dealing with the question whether
a particular caste or tribe would come within the
purview of the notified Presidential Order, considering
the language of Articles 341 and 342 of the
Constitution. These being the parameters and in the
case in hand, the Committee conducting the inquiry as
well as the Appellate Authority, having examined all
relevant materials and having recorded a finding that
Respondent 1 belonged to “Koshti” caste and has no
identity with “Halba/Halbi” which is the Scheduled Tribe
under Entry 19 of the Presidential Order, relating to the
State of Maharashtra, the High Court exceeded its
supervisory jurisdiction by making a roving and in-
depth examination of the materials afresh and in
coming to the conclusion that “Koshtis” could be
treated as “Halbas”. In this view the High Court could
not upset the finding of fact in exercise of its writ
jurisdiction.”
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10. What is important is that this Court noticed the
prevailing confusion arising out of different circulars and
instructions on the question of ‘Halba-Koshti’ being
Scheduled Tribes. Dealing with the observations made by
the High Court and referring to circulars, instructions and
resolution issued by the Government from time to time, this
court observed:
“33. The High court in paras 20 to 23 dealt with
circulars/resolutions/ instructions/orders made by the
Government from time to time on the issue of “Halba-
Koshtis”. It is stated in the said judgment that up to
20-7-1962 “Halba-Koshtis” were treated as “Halbas” in
the specified areas of Vidarbha. The Government of
Maharashtra, Education and Social Welfare Department
issued Circular No. CBC 1462/3073/M to the effect that
“Halba-Koshtis” were not Scheduled Tribes and they are
different from “Halba/Halbis”. In the said circular it is
also stated that certain persons not belonging to
“Halba” Tribe have been taking undue advantage and
that the authorities competent to issue caste
certificates should take particular care to see that no
person belonging to “Halba-Koshtis” or “Koshti”
community is given a certificate declaring him as a
member of Scheduled Tribes. On 22-8-1967 the
abovementioned circular of 20-7-1962 was withdrawn.
Strangely, on 27-9-1967, another Circular No. CBC-
1466/9183/M was issued showing the intention to treat
“Halba-Koshti” as “Halba”. On 30-5-1968 by Letter No.
CBC-1468-2027-O, the State Government informed the
Deputy Secretary to the Lok Sabha that “Halba-Koshti”
is “Halba/Halbi” and it should be specifically included in
the proposed amendment Act. The Government of
Maharashtra on 29-7-1968 by Letter No. EBC-
1060/49321-J-76325 informed the Commissioner for
Scheduled Castes and Scheduled Tribes that “Halba-
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Koshti” community has been shown included in the list
of Scheduled Tribes in the State and the students
belonging to that community were eligible for the
Government of India Post-Matric Scholarships. On 1-1-
1969 the Director of Social Welfare, Tribal Research
Institute, Pune, by his Letter No. TRI/I/H.K./68-69
stated that the State Government could not in law
amend the Scheduled Tribes Order and that a tribe not
specifically included, could not be treated as Scheduled
Tribe. In this view the Director sought for clarification.
The Government of India on 21-4-1969 wrote to the
State Government that in view of Basavalingappa case
“Halba-Koshti” community could be treated as
Scheduled Tribe only if it is added to the list as a sub-
tribe in the Scheduled Tribes Order and not otherwise.
Thereafter, few more circulars were issued by the State
Government between 24-10-1969 and 6-11-1974 to
recognise “Halba-Koshtis” as “Halbas” and indicated as
to who were the authorities competent to issue
certificates and the guidelines were given for inquiry.
There was again departure in the policy of the State
Government by writing a confidential Letter No. CBC-
1076/1314/Desk-V dated 18-1-1977. The Government
informed the District Magistrate, Nagpur, that “Halba-
Koshtis” should not be issued “Halba” caste certificate.
Thereafter, few more circulars, referred to in para 22 of
the judgment, were issued. It may not be necessary to
refer to those again except to the circular dated 31-7-
1981 bearing No. CBC-1481/(703)/D.V. by which the
Government directed that until further orders insofar as
“Halbas” are concerned, the School Leaving Certificate
should be accepted as valid for the purpose of the
caste. Vide resolution dated 23-1-1985 a new Scrutiny
Committee was appointed for verification of caste
certificates of the Scheduled Tribes. The High Court had
observed in para 23 of the judgment that several
circulars issued earlier were withdrawn but the said
circular dated 31-7-1981 was not withdrawn. For the
first time on 8-3-1985 the Scrutiny Committee was
authorised to hold inquiry if there was any reason to
believe that the certificate was manipulated or
fabricated or had been obtained by producing
insufficient evidence. Referring to these
circulars/resolutions the High Court took the view that
the caste certificate issued to Respondent 1 could be
considered as valid and up to 8-3-1985 the inquiry was
governed by circular dated 31-7-1981. The High Court
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dealing with the stand of the State Government on the
issue of “Halba-Koshti”, from time to time, and also
referring to circulars/resolutions/instructions held in
favour of Respondent 1 on the ground that the
appellant was bound by its own circulars/orders. No
doubt, it is true, the stand of the appellant as to the
controversy relating to “Halba-Koshti” has been varying
from time to time but in the view we have taken on
Question 1, the circulars/ resolutions/instructions
issued by the State Government from time to time,
some times contrary to the instructions issued by the
Central Government, are of no consequence. They
could be simply ignored as the State Government had
neither the authority nor the competency to amend or
alter the Scheduled Tribes Order.
But we make it clear that he cannot claim to belong
to the Scheduled Tribe covered by the Scheduled Tribes
Order. In other words, he cannot take advantage of the
Scheduled Tribes Order any further or for any other
constitutional purpose. Having regard to the passage of
time, in the given circumstances, including interim
orders passed by this Court in SLP (C) No. 16372 of
1985 and other related matters, we make it clear that
the admissions and appointments that have become
final, shall remain unaffected by this judgment.”
11. A careful reading of the above would show that both
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the High Court as also this Court were conscious of the
developments that had taken place on the subject whether
‘Halba-Koshti’ are ‘Halbas' within the meaning of the
Presidential Order. The position emerging from the said
circulars, resolutions and orders issued by the competent
authority from time to time notwithstanding, this Court on
an abstract principle of law held that an inquiry into the
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question whether ‘Halba-Koshti’ were Halbas within the
meaning of the Presidential order was not legally
permissible.
12. The appellant before us relies upon the above passage
extracted above to argue that her appointment had
attained finality long before the judgment of this Court was
delivered in Milind’s case and even when she was found to
be a ‘Koshti’ and not a ‘Halba’ by the Verification
Committee, she was entitled to protection against ouster.
13. We find merit in that contention. If ‘Halba-Koshti’ has
been treated as ‘Halba’ even before the appellant joined
service as a Teacher and if the only reason for her ouster is
the law declared by this Court in Milind’s case, there is no
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reason why the protection against ouster given by this
Court to appointees whose applications had become final
should not be extended to the appellant also. The
Constitution Bench had in Milind’s case noticed the
background in which the confusion had prevailed for many
years and the fact that appointments and admissions were
made for a long time treating ‘Koshti’ as a Scheduled Tribe
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and directed that such admissions and appointments
wherever the same had attained finality will not be affected
by the decision taken by this Court. After the
pronouncement of judgment in Milind’s case, a batch of
cases was directed to be listed for hearing before a Division
Bench of this Court. The Division Bench eventually decided
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those cases by an order dated 12 December 2000 (State
of Maharashtra v. Om Raj (2007) 14 SCC 488) granting
benefit of protection against ouster to some of the
respondents on the authority of the view taken by this
Court in Milind’s case. One of these cases, namely, Civil
Appeal No.7375 of 2002 arising out of SLP No.6524 of 1988
related to the appointment of a ‘Koshti’ as an Assistant
Engineer against a vacancy reserved for a ‘Halba/Scheduled
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Tribe candidate. This court extended the benefit of
protection against ouster to the said candidate also by a
short order passed in the following words:
“4. Leave granted.
5 . The appellant having belonged to Koshti caste
claimed to be included in the Scheduled Tribe of Halba
and obtained an appointment as Assistant Engineer.
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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
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of aharashtra v. Milind and were 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.”
14. Reference may also be made to Punjab National
Bank v. Vilas (2008) 14 SCC 545 . That too was a case
of appointment based on a certificate which was later
cancelled on the ground that ‘Halba Koshti’ was not the
same as ‘Halba’ Scheduled Tribe. The High Court had set
aside the termination of the service of the affected
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candidates relying upon a Government resolution dated 15
June 1995 as applicable to Punjab National Bank. While
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upholding the said order, H.K. Sema, J. held the candidate
to be protected against ouster on the basis of the
resolution. V.S. Sirpurkar, J., however, took a slightly
different view and held that the appointment made by the
Bank having become final the same was protected against
ouster in terms of the decision of the Constitution Bench in
Milind’s case (supra). The question whether the
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Government resolution protected the candidates against
ouster from service was for that reason left open by His
Lordship. Reliance in support of that view was placed upon
the decision of this Court in Civil Appeal No. 7375 of
2000 (wrongly mentioned in the report as Civil appeal No.
3375 of 2000) mentioned above. The Court observed:
“The situation is no different in case of the present
respondent. He also came to be appointed and/or
promoted way back in the year 1989 on the basis of his
caste certificate which declared him to be Scheduled
Tribe. Ultimately, it was found that since a “Koshti”
does not get the status of a Scheduled Tribe, the Caste
Scrutiny Committee invalidated the said certificate
holding that the respondent was a Koshti and not a
Halba. I must hasten to add that there is no finding in
the order of the Caste Scrutiny Committee that the
petitioner lacked in bona fides in getting the certificate.
I say this to overcome the observations in para 21 in
Sanjay K. Nimje case. But it is not a case where the
respondent pleaded and proved bona fides. Under such
circumstances the High Court was fully justified in
relying on the observations made in Milind case. The
High Court has not referred to the judgment and order
in Civil Appeal No. 3375 of 2000 decided on 12-12-
2000 to which a reference has been made above.
However, it is clear that the High Court was right in
holding that the observations in Milind case apply to
the case of the present respondent and he stands
protected thereby”.
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15. Our attention was drawn by counsel for the
respondents to the decision of this Court in Addnl.
General Manager/Human Resource BHEL v. Suresh
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Ramkrishna Burde (2007) 5 SCC 336 in which the
protection against ouster granted by the decision in
Milind’s case was not extended to the respondent therein.
A bare reading of the said decision, however, shows that
there is a significant difference in the factual matrix in
which the said case arose for consideration. In Burde’s
case, the Scrutiny Committee had found that the caste
certificate was false and, therefore, invalid. That was not
the position either in Milind’s case nor is that the position
in the case at hand. In Milind’s case, the Scrutiny
Committee had never alleged any fraud or any fabrication
or any misrepresentation that could possibly disentitle the
candidate to get relief from the Court. In the case at hand
also there is no such accusation against the appellant that
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the certificate was false, fabricated or manipulated by
concealment or otherwise. Refusal of a benefit flowing from
the decision of this Court in Milind’s case may, therefore,
have been justified in Burde’s case but may not be
justified in the case at hand where the appellant has not
been accused of any act or omission or commission of the
act like the one mentioned above to disentitle her to the
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relief prayed for. The reliance upon Burde’s case (supra),
therefore, if of no assistance to the respondent.
The decision of this Court in State of Maharashtra v.
Sanjay K. Nimje (2007) 14 SCC 481 relied upon by
learned counsel for the respondents was distinguished even
by V.S. Sirpurkar, J. in Vilas’s case. The distinction is
primarily in terms whether the candidate seeking
appointment or admission is found guilty of a conduct that
would disentitle him/her from claiming any relief under the
extraordinary powers of the Court. This Court found that if
a person secures appointment or admission on the basis of
false certificate he cannot retain the said benefit obtained
by him/her. The Courts will refuse to exercise their
discretionary jurisdiction depending upon the facts and
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circumstances of each case. The following passage from
decision in the Nimje’s case is apposite:
“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 (2006) 7 SCC 501.”
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16. Applying the above to the case at hand we do not see
any reason to hold that the appellant had fabricated or
falsified the particulars of being a Scheduled Tribe only with
a view to obtain an undeserved benefit in the matter of
appointment as a Teacher. There is, therefore, no reason
why the benefit of protection against ouster should not be
extended to her subject to the usual condition that the
appellant shall not be ousted from service and shall be re-
instated if already ousted, but she would not be entitled to
any further benefit on the basis of the certificate which she
has obtained and which was 10 years after its issue
cancelled by the Scrutiny committee.
17. In the result, we allow this appeal, set aside the order
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passed by the High Court and direct the reinstatement of
the appellant in service subject to the condition mentioned
above. We further direct that for the period the appellant
has not served the institution which happens to be an aided
school shall not be entitled to claim any salary/back wages.
She will, however, be entitled to continuity of service for all
other intents and purposes. The respondent shall do the
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needful within a month from the date of this order. The
parties are left to bear their own costs.
……………………………………….……….…..…J.
(T.S. Thakur)
……………………………..…………………..…..…J.
(Fakkir Mohamed Ibrahim Kalifulla)
New Delhi
August 9, 2012
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