Full Judgment Text
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CASE NO.:
Appeal (civil) 2424 of 2007
PETITIONER:
Additional General Manager/Human Resource Bharat Heavy Electricals Ltd
RESPONDENT:
Suresh Ramkrishna Burde
DATE OF JUDGMENT: 10/05/2007
BENCH:
G.P. Mathur & R.V. Raveendran
JUDGMENT:
J U D G M E N T
CIVIL APPEAL NO. 2424 OF 2007
(@ Special Leave Petition (Civil) No. 19889 of 2004)
G.P. Mathur, J.
Leave granted.
2. This appeal, by special leave, has been preferred against the
judgment and order dated 4.8.2004 of a Division Bench of Bombay
High Court (Nagpur Bench) by which the writ petition filed by the
respondent Suresh Ramkrishna Burde was disposed of with a
direction to reinstate him in service and further that in future he shall
not take any benefit as belonging to reserved category of Scheduled
Tribe.
3. The respondent herein, Suresh Ramkrishna Burde, claiming
himself to be belonging to Halba Scheduled Tribe and after submitting
a certificate to the said effect, got an appointment in the Bharat Heavy
Electricals Ltd., Hyderabad, as Clerk on 31.5.1982 on a post which
was reserved for a person belonging to Scheduled Tribe. He was
promoted as Assistate Grade II on 27.6.1987 and then as Assistant
Grade I on 25.6.1994. The Scheduled Tribes Employees Association
(Regd. No. 290 BHEL), Hyderabad, made a complaint that the
respondent and several others had produced false caste certificates and
had thereby got appointment on vacancies which were reserved for
members of Scheduled Tribes. The caste certificate produced by the
respondent was referred for verification to District Collector, Nagpur,
on 30.3.1991 and also to the Chairman, Scheduled Tribe Caste
Certificate Scrutiny Committee (for short ’the Scrutiny Committee’).
The Scrutiny Committee vide order 30.8.1995 held that the caste
certificate produced by the respondent was false and the same was
invalidated. The respondent challenged the said order by filing writ
petition No. 3229 of 1995 before the Nagpur Bench of Bombay High
Court, which was allowed and the matter was remanded back to the
Scrutiny Committee for a fresh consideration in accordance with law.
The Scrutiny Committee again examined the matter in accordance
with the direction of the High Court and also got an enquiry
conducted through its Police Vigilance Cell. The enquiry committee
took into consideration the primary school record of the respondent
and also extracts of the admission register of the school where the
respondent’s real paternal cousin had his primary education in the
year 1945 onwards. The Scrutiny Committee vide its report dated
29.8.2001 found that the respondent belonged to ’Koshti’ caste and he
did not belong to Halba Scheduled Tribe. This order was again
challenged by the respondent by filing writ petition No. 3628 of 2001
before the Nagpur Bench of Bombay High Court wherein an interim
stay was granted in favour of the respondent on 1.11.2001. The writ
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petition was finally disposed of on 17.2.2004 and the relevant portion
of the order is being reproduced below: -
"Learned counsel for the petitioner seeks
permission to withdraw the present Writ Petition with a
liberty to approach the employer of the petitioner by
making a representation in view of the observations of
the Apex Court in Milind Katware’s case reported in
2001 (1) Mh.L.J. as well as in view of the Govt.
Resolutions dated 15th June, 1995 and 15th March, 2000,
and further prays that a direction be given to the
respondent no. 4 \026 employer of the petitioner, to decide
the representation of the petitioner on its own merits
within the stipulated period.
Permission is granted. Writ Petition is dismissed
as withdrawn.
Respondent No. 4 is directed to decide the
representation of the petitioner according to the law
within a period of six weeks from the date of the receipt
of such representation."
Thereafter, the respondent made a representation dated 12.3.2004 to
the appellant herein (employer) wherein he prayed that in view of
decision of the Supreme Court in State of Maharashtra vs. Milind and
others (2001) 1 SCC 4, his services may be protected. This
representation was considered by the appellant and was rejected. The
services of the respondent were terminated vide order dated
16.7.2004. Feeling aggrieved by the said order the respondent then
filed writ petition No. 3142 of 2004 before the Nagpur Bench of
Bombay High Court, which, after accepting his undertaking that in
future he will not take any advantage of being a member of Scheduled
Tribe, was disposed of with a direction that he shall be reinstated in
service. The order passed by the High Court is a brief one and
relevant part thereof is reproduced below: -
"It may be noted here that the judgment of the
Supreme Court in State of Maharashtra v. Milind
Katware (Mh L.J. 2001 (1) page-1) is not only the
judgment pertaining to that case but it is also a settled
law. In fact, the Honourable Supreme Court has accepted
the same to be the settled law in various judgments
rendered thereafter.
In accordance with the said judgment of Milind
Katware the petitioner has already filed an undertaking
that he will not take any benefit of Halba Scheduled
Tribe in future.
The learned counsel for the petitioner, on behalf of
the petitioner, undertakes that, neither the petitioner nor
his family members will ever claim any benefit as
belonging to Halba Scheduled Tribe. The said
undertaking is accepted. The learned counsel for the
petitioner also states that the petitioner will abide by the
order of Scrutiny Committee, referred in the order dated
16th July, 2004, especially when the undertaking is
accepted.
Under the circumstances, we direct the respondent
to reinstate the petitioner, as his services were terminated
only on the limited ground. We make it clear that the
respondent shall not terminate services of the petitioner
only on the ground that he does not belong to Halba
(Scheduled Tribe). The respondent shall treat the
petitioner to be belonging to open category.
The writ petition stands disposed of in the above
terms."
4. Shri L.N. Rao, learned senior counsel for the appellant, has
submitted that the respondent had secured appointment by producing
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a false caste certificate which showed him to be belonging to Halba
Scheduled Tribe when in fact he was not a member of Scheduled
Tribe at all and thus he secured appointment on a post which was
reserved for a person belonging to the said caste. Learned counsel has
submitted that fraud vitiates most solemn transaction and as the
respondent had got appointment by fraudulent means, his services
were rightly terminated and the High Court has erred in directing his
reinstatement after relying upon the decision in the case of Milind
though no such principle had been laid down in the said case.
5. Learned counsel for the respondent has supported the judgment
of the High Court and has submitted that the respondent had given an
undertaking that neither he nor his family members will ever take any
benefit as belonging to Halba Scheduled Tribe and in view of the said
undertaking the High Court was perfectly right in protecting his
services and directing his reinstatement. Learned counsel has also
submitted that the judgment of the High Court is in accordance with
the Constitution Bench decision of this Court in State of Maharastra
vs. Milind (supra) and, therefore, there is no ground on which this
Court may interfere with the order passed by the High Court.
6. There is no dispute on facts. After receiving complaints about
the caste certificate produced by the respondent the appellant referred
the matter for verification to the District Collector, Nagpur on
30.3.1991 and also to the Scrutiny Committee. The Scrutiny
Committee, after thorough verification, passed order on 30.8.1995 that
the respondent did not belong to the Scheduled Tribe and the caste
certificate submitted by him was false. This order was challenged by
the respondent and the High Court in writ petition No. 3229 of 1995
remanded the matter back to the Scrutiny Committee for fresh
consideration. The Scrutiny Committee again conducted the enquiry
through its Police Vigilance Cell associated with the research officer
and after thorough examination of the entire material again passed an
order on 29.8.2001 that the caste of the respondent was ’Koshti’ and
he did not belong to Scheduled Tribe. This order was again
challenged by the respondent by filing writ petition No. 3628 of 2001.
However, at the time of hearing of the writ petition the petitioner
sought leave of the court to withdraw the writ petition with liberty to
approach the employer by making a representation. The writ petition
was accordingly dismissed as withdrawn on 17.2.2004. The effect of
the order passed by the High Court is that the order dated 29.8.2001 of
the Scrutiny Committee, by which it was held that the respondent
belonged to ’Koshti’ caste and he is not a member of Scheduled Tribe,
attained finality. Therefore, there is no escape from the conclusion
that the respondent secured the appointment on a post which was
reserved for Scheduled Tribe by producing a false caste certificate.
7. The High Court has granted relief to the respondent and has
directed his reinstatement only on the basis of the Constitution Bench
decision of this Court in State of Maharashtra vs. Milind (2001) 1
SCC 4. In our opinion the said judgment does not lay down any such
principle of law that where a person secures an appointment by
producing a false caste certificate, his services can be protected and an
order of reinstatement can be passed if he gives an undertaking that in
future he and his family members shall not take any advantage of
being member of a caste which is in reserved category. The questions
which required for consideration by the Constitution Bench, are noted
in the very first paragraph of the judgment and they are being
reproduced below: -
"1) Whether at all, it is permissible to hold enquiry and
let in evidence to decide or declare that any tribe or
tribal community or part of or group within any
tribe or tribal community is included in the general
name even though it is not specifically mentioned
in the concerned Entry in the Constitution
(Scheduled Tribes) Order, 1950?
2) Whether ’Halba Koshti’ caste is a sub-tribe within
the meaning of Entry 19 (Halba/Halbi) of the said
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Scheduled Tribes Order relating to State of
Maharashtra, even though it is not specifically
mentioned as such?"
After thorough discussion of the matter the conclusions of the Bench
are recorded in paragraph 36 of the report. It was held that it is not at
all permissible to hold any enquiry or let in any evidence to decide or
declare that any tribe or tribal community or part of or group within
any tribe or tribal community is included in the general name even
though it is not specifically mentioned in the concerned Entry in the
Constitution (Scheduled Tribes) Order, 1950. It was further held that
the notification issued under clause (1) of Article 342, specifying
Scheduled Tribes, can be amended only by law to be made by
Parliament and it is not open to the State Governments or courts or
any other authority to modify, amend or alter the list of Scheduled
Tribes specified in the notification issued under clause (1) of Article
342 and the Constitution (Scheduled Tribes) Order 1950. The law
declared by the Constitution Bench does not at all lay down that
where a person secures an appointment by producing a false caste
certificate, his services can be protected on his giving an undertaking
that in future he will not take any advantage of being a member of the
reserved category.
8. After interpreting the relevant constitutional or statutory
provisions and laying down the law, it is always open to a court to
mould the relief which may appear to be just and proper in the facts
and circumstances of the case. Some times equitable considerations
also come into play while granting a relief. Milind had got admission
in a medical course in the year 1985-86 by producing a caste
certificate that he belonged to Halba Caste, which was later on
invalidated by the Scrutiny Committee. That order was challenged by
him by filing a writ petition which was allowed by the High Court.
The appeal filed by the State of Maharashtra was allowed by the
Constitution Bench of this Court on 28.11.2000, i.e., almost 15 years
after he had got admission in the course. By that time Milind had
already completed his MBBS course and was practising as a doctor.
This Court took notice of the fact that a huge amount of public money
is spent on every student studying in the medical course and a
qualified doctor on whom public money had been spent does service
to the society. The Court, therefore, observed "in these
circumstances, this judgment shall not affect the degree obtained by
him and his practicing as a doctor". However, it was made clear that
he cannot take any advantage as being a member of Scheduled Tribe
for any other purpose.
9. An identical controversy was again examined in R.
Vishwanatha Pillai vs. State of Kerala (2004) 2 SCC 105, which is a
decision rendered by a Bench of three learned Judges. The employee
in the aforesaid case had got an appointment in the year 1973 against
a post reserved for Scheduled Caste. On complaint, the matter was
enquired into and the Scrutiny Committee vide its order dated
18.11.1995 held that he did not belong to Scheduled Caste and the
challenge raised to the said order was rejected by the High Court and
the special leave petition filed against the said order was also
dismissed by this Court. He then filed a petition before the
Administrative Tribunal praying for a direction not to terminate his
services which was allowed, but the order was reversed by the High
Court in a writ petition. The employee then filed an appeal in this
Court. After a detailed consideration of the matter this Court
dismissed the appeal and para 15 of the report, which is relevant for
the decision of the present case, is reproduced below: -
"15. This apart, the appellant obtained the
appointment in the service on the basis that he belonged
to a Scheduled Caste community. When it was found by
the Scrutiny Committee that he did not belong to the
Scheduled Caste community, then the very basis of his
appointment was taken away. His appointment was no
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appointment in the eyes of law. He cannot claim a right
to the post as he had usurped the post meant for a
reserved candidate by playing a fraud and producing a
false caste certificate. Unless the appellant can lay a
claim to the post on the basis of his appointment he
cannot claim the constitutional guarantee given under the
Article 311 of the Constitution. As he had obtained the
appointment on the basis of a false caste certificate he
cannot be considered to be a person who holds a post
within the meaning of Article 311 of the Constitution of
India, Finding recorded by the Scrutiny Committee that
the appellant got the appointment on the basis of false
caste certificate has become final. The position,
therefore, is that the appellant has usurped the post which
should have gone to a member of the Scheduled Caste. In
view of the finding recorded by the Scrutiny Committee
and upheld upto this Court he has disqualified himself to
hold the post. Appointment was void from its
inception.............................."
10. In Bank of India vs. Avinash D. Mandivikar (2005) 7 SCC 690,
the employee had got an appointment on 15.10.1976 on a post which
was reserved for a member of Scheduled Tribe. The Scrutiny
Committee invalidated the caste certificate on 18.7.1987 which was
challenged by the employee. After several rounds of litigation his
services were terminated on 28.2.2002. After referring to the decision
in the case of Milind and some other decisions, this Court allowed the
appeal of the employer affirming the order of termination of service of
the employee. Paragraph 6 of the report where the principle was laid
down reads as under: -
"6. Respondent No. 1-employee obtained appointment
in the service on the basis that he belonged to Scheduled
Tribe. When the clear finding of the Scrutiny Committee
is that he did not belong to Scheduled Tribe, the very
foundation of his appointment collapses and his
appointment is no appointment in the eyes of law. There
is absolutely no justification for his claim in respect of
post he usurped, as the same was meant for reserved
candidate."
10. In R. Vishwanatha Pillai vs. State of Kerala (2004) 2 SCC 105,
which we have referred to earlier, the case of the employee’s son, who
got admission in an engineering college against a seat reserved for
Scheduled Caste, was also considered. The admission in the
engineering college was obtained in 1992 and he completed the course
in 1996 though under the interim order of the High Court. The appeal
was decided by this Court on 7.1.2004. Placing reliance upon
paragraph 38 of the judgment in the case of Milind (supra), this Court
observed that no purpose would be served in withholding the
declaration of the result on the basis of examination already taken by
the student or depriving him of the degree in case he passes the
examination. It was accordingly directed that the student’s result be
declared and he be allowed to take his degree with the condition that
he will not be treated as Scheduled Caste candidate in future either in
obtaining service or for any other benefits flowing from the caste
certificate obtained by him and he shall be treated to be a person
belonging to general category.
11. The principle, which seems to have been followed by this Court
is, that, where a person secures an appointment on the basis of a false
caste certificate, he cannot be allowed to retain the benefit of the
wrong committed by him and his services are liable to be terminated.
However, where a person has got admission in a professional course
like engineering or MBBS and has successfully completed the course
after studying for the prescribed period and has passed the
examination, his case may, on special facts, be considered on a
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different footing. Normally, huge amount of public money is spent in
imparting education in a professional college and the student also
acquires the necessary skill in the subjects which he has studied. The
skill acquired by him can be gainfully utilized by the society. In such
cases the professional degree obtained by the student may be
protected though he may have got admission by producing a false
caste certificate. Here again no hard and fast rule can be laid down.
If the falsehood of the caste certificate submitted by the student is
detected within a short period of his getting admission in the
professional course, his admission would be liable to be cancelled.
However, where he has completed the course and has passed all the
examinations and acquired the degree, his case may be treated on a
different footing. In such cases only a limited relief of protection of
his professional degree may be granted.
12. In the case in hand the respondent got appointment on
31.5.1982 on a post, which was reserved for a member of Scheduled
Tribe. On receiving complaints the employer referred the matter to
the District Collector, Nagpur and also to Scrutiny Committee in
March, 1991. The subsequent period has been spent in making
enquiry and in litigation as the respondent filed three writ petitions.
In view of the principle laid down by this Court we are clearly of the
opinion that his services were rightly terminated by the appellant and
the High Court was in error in directing his reinstatement. The order
passed by the High Court, therefore, has to be set aside.
13. Before parting with the case we would like to observe that the
order invalidating the caste certificate had been passed by the Scrutiny
Committee at Nagpur and, therefore, the earlier two writ petitions
filed by the respondent were maintainable before the Nagpur Bench of
Bombay High Court. However, in the third and final writ petition the
order under challenge was the order of termination of service which
was passed by the appellant on 16.7.2004 at Hyderabad as the
respondent was working with the Bharat Heavy Electrical Ltd.’s
Heavy Power Equipment Plant, Hyderabad. Therefore, the Nagpur
Bench of Bombay High Court had no jurisdiction to entertain the writ
petition wherein challenge was raised to the said order. However, in
order to cut short the litigation and settle the controversy we have
decided the case on merits.
14. Learned counsel for the respondent also sought to take some
benefit of a certain Government Order dated 15.6.1995 issued by the
State of Maharashtra wherein some reservation in service is provided
to members of special backward class. In our opinion the respondent
can get no benefit from the same as he is not an employee of
Government of Maharahstra but is an employee of a public sector
undertaking of Central Government and he secured the appointment
long before on 31.5.1982.
15. For the reasons discussed above the appeal is allowed. The
judgment and order dated 4.8.2004 of the Bombay High Court
(Nagpur Bench), which is under challenge in the present appeal, is set
aside. The writ petition filed by the respondent is dismissed.
16. No order as to costs.