Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5308 OF 2008
[Arising out of SLP (Civil) No. 7555 of 2008]
Raju Ramsing Vasave …Appellant
Versus
Mahesh Deorao Bhivapurkar & Ors. …Respondents
J U D G M E N T
S.B. SINHA, J :
1. Leave granted.
2. Whether a co-employee of the respondent No. 1 who was working
as a Field Officer with the Maharashtra Pollution Control Board can
maintain an independent special leave questioning the judgment of a
High Court setting aside an order of the Schedule Tribe Caste Certificate
Scrutiny Committee is the question involved herein.
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3. Before, however, we advert thereto, we may notice the admitted
factual matrix of the matter.
Respondent No. 1 claims himself to be a member of Schedule
Tribe being belonging to “Halba” tribe notified in terms of the
Constitution (Scheduled Tribes) Order, 1950. Respondent No. 1 and his
family members are highly educated. The caste of his father in the
school records was shown as “Koshti” whereas the caste of his uncle was
also shown as “Koshti” which was, however, later on corrected as
“Halba”. One of his cousins Ku. Sandhya Manohar Bhivapurkar,
daughter of the uncle of the respondent No. 1, was also granted a
certificate as belonging to the “Halba” community.
4. An intricate question as to whether “Koshti” is a sub-caste of
“Halba” or “Halbi” came up for consideration before a Division Bench of
the Bombay High Court in Milind Sharad Katware and others v. State of
Maharashtra and others [1987 Mh. L.J. 572]. In the said judgment, the
Division Bench inter alia referred to the report of a Joint Committee
headed by Dr. A.K. Chandra which had been submitted to the Parliament
on 17.11.1969 to opine:
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“…It does appear from the report that
representation sent to the Joint Committee by
Halba Koshti Samaj was circulated to the
members and that the Committee had visited
Nagpur. However, it does not appear that
either evidence is taken on the matter as has
been done in the cases of several
representations about other Committees or that
even without that a conclusion is reached that
Halba – Koshti does not form part and parcel of
Tribe “Halba’ Halbi”. It is thus clear that the
enquiries undertaken by several authorities and
Courts so far and the enquiry which we are
making now in these petitions do not amount to
amending the list in any manner whatsoever.”
Various authorities and the purported custom of the Halba-Koshti
had also been taken into consideration by the court to hold:
“(1) It is permissible to enquire whether any
sub-division of a Tribe – though not mentioned
in the Act – is a part and parcel of the Tribe
mentioned therein.
(2) The decisions rendered by the Courts
from time to time about Halba Koshtis being
part and parcel of “Halba/ Halbi” tribe are
binding on the government and authorities
constituted by it.
(3) The scope of enquiry in cases relating to
th
students’ admissions before 8 March 1985 was
limited to points mentioned in the circular
st
dated 31 July 1981.
(4) It is impermissible to take inconsistent
stand about a tribe in cases of near relatives.
st rd
(5) Circulars dated 31 July 1981 and 23
September 1983 are valid.
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(6) ‘Halba Koshti’ is a sub-division of main
tribe “Halba/ Halbi” as per entry No. 19 in the
Act as applied to Maharashtra.
(7) Every Koshti is not Halba Koshti.”
The State of Maharashtra came up in appeal before this Court
thereagainst. A limited order of stay was passed directing:
“There will be no order of stay of the judgment
of the High Court but subject to the condition
that Halba Koshtis will be entitled to admission
to the seats reserved for Scheduled Tribes on
the basis of High Court judgment, provided the
authorities granted admission are satisfied that
they or their parents had income of less than
Rs. 7200/- per annum.”
4. Indisputably, however, the respondent No. 1 also filed a writ
petition claiming the said benefit which was marked as W.P. No. 1347 of
1988. The Division Bench of the Bombay High Court following its
decision in Milind Sharad Katware (supra) allowed the said writ petition
by an order dated 11.08.1988 stating:
“1. This petition relates to the caste claim
Halba. Petitioner’s father’s real elder brother
has been adjudicated as belonging to Scheduled
Tribe.
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2. In the case of Milind Sharad Katware Vs.
State of Maharashtra (1987 Mah. Law Journal
572), we have taken a view that it is
impermissible to take inconsistent view
between the cases of near relatives in such
matters. Hence the impugned orders are
quashed and set aside. The petitioner is
declared to be belonging to Scheduled Tribe –
Halba.”
5. It is of some significance to note that the Government of
Maharashtra appointed an Expert Committee known as Ferriera
Committee. It submitted its report in the year 1985. In its report, the
Expert Committee stated:
“The Halba/ Halbi Tribe, as per the
Constitution (Scheduled Tribes) Order, (1950)
read with Part – IX of the second schedule to
the Scheduled Castes, Scheduled Tribes Order
(Amendment) Act (1976) has been declared a
scheduled Tribe in the State of Maharashtra and
has appeared at Sr. No. 19 in the schedule. The
members of the caste known as Koshti/ Halba –
Koshti, residing in particular in the Vidarbha
areas, claim that they belong to the said Halba/
Halbi tribe and are entitled to obtain caste
certificates as belonging to the Halba/ Halbi
scheduled Tribe. Their contention is that the
word “Koshti” is indicative of their traditional
occupation, namely, weaving and it is not
connected with the caste. Therefore, they
should get all the facilities and concessions
extended to the Scheduled Tribes. On the other
hand, the Halba/ Halbi tribals, particularly of
the Bhandara and Gadchiroli districts and their
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tribal representatives in the Legislative
Assembly, Maharashtra, represented to the
Government that persons belonging to the
Halba/ Koshti/ Koshti caste from the Vidarbha
region claim to belong to the Halba/ Halbi tribe
in order to secure concessions sanctioned for
the scheduled Tribes. The Halba Koshtis/
Koshtis do not belong to the scheduled Tribes.”
Its conclusions were:
“9.1 The expert committee appointed by the
Government of Maharashtra to examine the
Halba/ Halba Koshti problem undertook a
careful study of the secondary literature,
initiated filed investigations and interviewed a
number of Koshtis, a Halba Koshtis and Halba
Tribals. Consequently, it has come to the
conclusion that the Koshtis are a caste, the
Halba Koshtis a sub-caste of the Koshti caste
and the Halbas a Scheduled Tribe. The Halba
tribals have no relations of identity with the
Halba Koshti sub-caste of the Vidarbha Region,
except for a partially common nomenclature.
9.2 More specifically, the Committee has
come to the conclusion that the Koshtis and
Halba Koshtis are not characaterised by
primitive traits, a relatively distinct culture,
culture, culturally and territorially demarcated
areas of habitation relative shyness of contact
with the community at large and a high degree
of backwardness whereas the Halba/ Halbi
Scheduled Tribe is indeed so characterised.
*
9.12 In brief, an examination of the secondary
source from the year 1827 to the year 1985, a
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review of the field data and an evaluation of the
information accruing from interviews makes it
clear that the Halba Koshtis are a caste with a
specific occupation or a sub-caste of the Koshti
caste whose traditional occupation is weaving.
In the census records the Halbas have been
classified as a tribe and the Koshtis as a caste.
Furthermore, the facts overwhelmingly indicate
that the Koshtis are concentrated in cities and
towns like Nagpur, Bhandara Umred and so on,
whereas the Halba tribals are largely located in
the hilly and forest areas of Bhandara and
Gadchiroli districts.
Thus with the weight of evidence before it, the
Expert Committee concludes that there are no
decisive social, ethnic, linguistic, religious and
other affinities between the Halba Koshi sub-
caste of the Koshti caste, on the one hand and
the Halba tribe in Maharashtra, on the other.”
6. The case of the respondent No. 1 was referred to the Schedule
Tribe Certificate Scrutiny Committee. The Committee held:
“Thereafter the Scrutiny Committee decided to
conduct school enquiry of the case and
approached the primary school of the
candidate’s father i.e. Mangalwari Prathmik
Shala, Umrer, District Nagpur. In the enquiry
with the school it was revealed that the father
of the candidate had studied in this school from
1946 to 1950 and his caste has been recorded as
Koshti, at Sr. No. 3100. This shows that the
caste of the candidate’s father was recorded as
Koshti. This is pretty old record pertaining to
period prior to the passing of the Constitution
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Scheduled Tribe Order 1950 and obviously
carries more evidential value than any other
subsequent evidence because there was no
provocation at that time for noting wrong caste
claims. Thus, from an important documentary
evidence it has been established that the caste
of the candidate’s father is Koshti. The caste of
the father determines the caste of his progency
in Hindu society. When it has proved that caste
of the candidate’s father is Koshti, the caste of
the candidate is bound to be Koshti and he
cannot claim to be belonging to Halba,
Scheduled Tribe.”
The Committee considered all the documents including the school
registers. It went into the question as to whether the respondent No. 1
followed the traits of the members of the Scheduled Tribe to hold:
“After considering all the aforesaid documents
and in exercise of the powers vested in it, the
Scrutiny Committee has come to the conclusion
that Shri Mahesh Deorao Bhivapurkar does not
belong to Halba Scheduled Tribe and as such
his claim towards the same is held invalid. He
belongs to Koshti caste which comes under
other Backward Classes and as such the caste
certificate of his belonging to Halba, Scheduled
Tribe granted by the Executive Magistrate,
Nagpur vide NO. 235/MEC-81/87-88 dated
18.8.1987 is hereby cancelled.”
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7. The matter was thereafter referred to the Caste Scrutiny
Committee. However, relying on or on the basis of the decision of the
High Court dated 11.08.1988 in Writ Petition No. 1347 of 1988, the
Scheduled Tribe Caste Scrutiny Committee, Pune refused to grant a
certificate in his favour by an order dated 18.09.1997, stating:
“Your claim towards Halba has been
adjudicated by Scrutiny Committee on
24.1.1988 and held invalid against this decision
you have filed Writ Petition No. 1347 of 1988
and the same is allowed by High Court on
11.8.1988. The Hon’ble High Court quashed
and set aside the order of Director, Tribunal
Research and Training Institute, Pune by
referring the similar case of Milind Sharad
Katware Vs. State of Maharashtra. As per the
S.C. Interim order the benefit of ST is available
for the candidates for the education purpose
only. Therefore, there is no question to grant
validity only on the basis of limited orders.”
The said order appears to have been passed on a wrong premise
that this Court in the case of Milind Sharad Katware (supra) had passed
an interim order. Although the said order was passed on a wrong
premise. Its validity was not questioned.
8. In Milind Sharad Katware (supra), this Court by a judgment and
order dated 28.11.2000 (hereinafter referred to as “Milind”) held:
1
“1 . It is not at all permissible to hold any
inquiry 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 entry concerned in the Constitution
(Scheduled Tribes) Order, 1950.
2 . The Scheduled Tribes Order must be read
as it is. It is not even permissible to say that a
tribe, sub-tribe, part of or group of any tribe or
tribal community is synonymous to the one
mentioned in the Scheduled Tribes Order if
they are not so specifically mentioned in it.
3 . A notification issued under clause (1) of
Article 342, specifying Scheduled Tribes, can
be amended only by law to be made by
Parliament. In other words, any tribe or tribal
community or part of or group within any tribe
can be included or excluded from the list of
Scheduled Tribes issued under clause (1) of
Article 342 only by Parliament by law and by
no other authority.”
However, it was directed:
“38 . Respondent 1 joined the medical course
for the year 1985-86. Almost 15 years have
passed by now. We are told he has already
completed the course and may be he is
practising as a doctor. In this view and at this
length of time it is for nobody’s benefit to annul
1
his admission. Huge amount is spent on each
candidate for completion of medical course. No
doubt, one Scheduled Tribe candidate was
deprived of joining medical course by the
admission given to Respondent 1. If any action
is taken against Respondent 1, it may lead to
depriving the service of a doctor to the society
on whom public money has already been spent.
In these circumstances, this judgment shall not
affect the degree obtained by him and his
practising as a doctor. 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.”
9. Appellant and the respondent No. 1 together with two others were
appointed as Field Officers. Whereas the respondent No. 1 was placed at
Sl. No. 69 of the Select List, the appellant was placed at Sl. No. 73
thereof. As against the names of the S.T. candidates, however, it was
stated:
“Services of these candidates will be continued
subject to “Validity Certificate”
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10. However, we may notice that an application in the disposed of writ
petition bearing No. 1347 of 1988 was filed by the respondent No. 1 in
2006; the prayers made wherein read as under:
“i) this Hon’ble High Court may be pleased
to issue appropriate direction to the respondent
No. 3 to issue caste validity certificate pursuant
to the judgment dated 11.8.1988 in Writ
Petition No. 1347 of 1988 in the interest of
justice;
ii) direct the respondent No. 4 to consider
the petitioner as backward class candidate
belonging to Halba Scheduled Tribe, as per
declaration of the Hon’ble High court as and
when promotion to the candidates of Scheduled
Tribe category is ordered/ effected, till the point
of time of issue of caste validity certificate by
the Caste Certificate Scrutiny Committee i.e.
respondent No. 3 as he is topping the list of
Scheduled Tribe employee in the cadre of Field
Officer as per circular letter dated 3.12.2002.”
11. It is of some significance to notice that in the original writ petition,
the employer was not a party. In the interlocutory application, however,
it was impleaded as a party.
12. Before we advert to the impugned judgment of the High Court, we
may notice that the Maharashtra Pollution Control Board issued a
circular on or about 14.12.2004 directing:
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“As per aforementioned referred letter, it is
communicated to you about submission of
Scheduled Tribe Officer/ Employee Caste
Validity Certificate. And those officers/
employees who are not having caste validity
certificate their record pertaining to Caste
Certificate is to be sent to verification
committee. But the office heads has not looked
into the matter specifically and acted
accordingly. You are communicated once
again vide this letter that those officer/
employee in your office which are ST there
caste validity certificate is to be submitted to
establishment branch without fail or regarding
his submission and validity certificate the
report of action taken at your level is to be
communicated immediately.
Thereafter officer/ employee (Backward
class) Scheduled Caste, Scheduled Tribe,
Vimukta Jati, Nomadic Tribe, Other Backward
Special Backward etc. in the cadre such officer/
employee are required to submit their caste
validity certificate to this office immediately.
The officer/ employee who has not
submitted validity certificate or not having
validity certificate is required to submit the
record through office to the caste scrutiny
committee and the report of the same should be
furnished so that all the backward class officer/
employee’s validity certificate can be attached
to their service book.
In this matter all office head, HQ
controlling officer are hereby informed that
they have to look into the matter specifically
and take action so early and submit the report to
this office immediately.
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Backward Class officer/ employees
cannot be considered for the promotion without
submission of validity certificate. This has to
be brought to the notice of respective
candidates.”
By reason of the impugned judgment, the High Court held:
(i) It was not necessary to implead the Maharashtra State Pollution
Control Board as a party in the application.
(ii) The order dated 11.08.1988 passed in the Writ Petition No.
1347 of 1988 attained finality whereby the respondent No. 1
had been declared to be belonging to the Schedule Tribe
“Halba”.
(iii) The decision of the Caste Scrutiny Committee declining grant
of certificate relying on or on the basis of the order dated
14.07.1986 passed by this Court was wrongly interpreted and it
committed an error in refusing to grant such a certificate.
It was directed:
“Hence, the application is allowed in said terms
and production of caste certificate dated
13.8.1987 by the applicant with respondent No.
4 – employer would be sufficient compliance
1
with the Circular issued by respondent No. 4 in
order to hold that the applicant belongs to the
Scheduled Tribe – Halba by virtue of the
verdict of this Court in Writ Petition No. 1347
of 1988 decided on 11.8.1988.”
13. Mr. Gaurav Agarwal, learned counsel appearing on behalf of the
appellant, would urge that although this special leave petition is not in
the nature of a public interest litigation as such, but keeping in view of
the fact that the judgment of the High Court is wholly without
jurisdiction being contrary to the decision of this Court in Milind as well
as a large number of decisions following the same, the impugned
judgment cannot be sustained.
14. Mr. A.V. Savant, learned senior counsel appearing on behalf of the
respondents, on the other hand, would contend that the claim of the
respondent No. 1 had never been advanced on the basis that he belongs
to Koshti, a sub-caste of Halba tribe but all along the same had been
advanced on the basis that he belongs to the said tribe.
Contending that the Division Bench of the Bombay High Court in
its judgment dated 11.08.1988 having held that the respondent No. 1
should be declared to be belonging to “Halba” tribe on the premise that
1
his other relatives had been declared as such, no exception to the
impugned judgment can be taken and for the aforementioned purpose,
the caste certificates granted to the father of the respondent No. 1, his
uncle and the cousin could be relied upon.
The learned counsel would urge that it would be incorrect to
contend that this Court in Milind had overturned the decision of the High
Court that the test of scrutiny as regards the traits of a member of the
Scheduled Tribe should not be on the premise that his other near relatives
had been granted the certificates. In support of the said contention, our
attention has been drawn to the following questions framed by this Court
in Milind :
“( 1 ) Whether at all, it is permissible to hold
inquiry 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 entry
concerned 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 Scheduled Tribes
Order relating to the State of Maharashtra, even
though it is not specifically mentioned as
such?”
1
So far as the question No. 2 is concerned, it has been held that “it
is not even permissible to say that a tribe, sub-tribe, part of or group of
any tribe or tribal community is synonymous to the one mentioned in the
Scheduled Tribes Order if they are not so specifically mentioned in it”.
15. Article 342 of the Constitution of India reads as under:
“342. Scheduled Tribes
(1) The President may with respect to any State
or Union territory, and where it is a State after
consultation with the Governor thereof, by
public notification5 specify the tribes or tribal
communities or parts of or groups within tribes
or tribal communities which shall for the
purposes of this Constitution be deemed to be
Scheduled Tribes in relation to that State or
Union territory, as the case may be.
(2) Parliament may by law include in or
exclude from the list of Scheduled Tribes
specified in a notification issued under clause
(1) any tribe or tribal community or part of or
group within any tribe or tribal community, but
save as aforesaid a notification issued under the
said clause shall not be varied by any
subsequent notification.”
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16. In terms of the said provision, the Constitution (Scheduled Tribes)
Order, 1950 was issued. The tribe “Halba” finds place in the said order.
“Koshti”, however, in the State of Maharashtra comes under ‘special
backward class’. Their occupation may be the same but it is well-settled
that before a person can obtain a declaration that he is a member of a
scheduled tribe, he must be a member of a tribe. [See Nityanand Sharma
v. State of Bihar (1996) 3 SCC 576]
The Parliament, it is trite, alone can amend the law and the
schedule for the purpose of including or excluding therefrom a tribe or
tribal community or part of or group within the same in the State, district
or region and the declaration made by the Parliament is conclusive. For
the said purpose, the court does not have any jurisdiction so as to enable
it to substitute any caste and tribe.
17. It is not correct to contend that the Bombay High Court in Milind
Sharad Katware (supra) was not concerned with the question as to
whether Halba – Koshti is a sub-tribe of Halba or Halbi. It in fact
considered the said question in great depth. It referred to a large number
of judgments. The doctrine of stare decisis was applied.
1
18. Milind was applied in a large number of cases. Some of the
judgments had been accepted by the Government. It is in the
aforementioned backdrop, this Court in Milind opined:
“31 . The High Court applied the doctrine
of stare decisis on the grounds that the
decisions referred to above were considered
judgments; even the Government accepted
their correctness in the courts; the State
Government independently took the same
view after repeated deliberations for a number
of years; taking a contrary view would lead to
chaos, absurd contradictions resulting in great
public mischief. In our view, the High Court
was again wrong in this regard. The learned
Senior Counsel for Respondent 1 was not in a
position to support this reasoning of the High
Court and rightly so in our opinion. Among
the decisions listed above except the first two
decisions, all other decisions were rendered
subsequent to two Constitution Bench
judgments (supra) of this Court. The first two
judgments were delivered in 1956 and 1957.
In this view, the High Court was not right in
stating that the decisions were rendered
during a long span of over 34 years by
different Benches of different High Courts,
consistently holding that “Halba-Koshti” is
“Halba”. The rule of stare decisis is not
inflexible so as to preclude a departure
therefrom in any case but its application
depends on facts and circumstances of each
case. It is good to proceed from precedent to
precedent but it is earlier the better to give
quietus to the incorrect one by annulling it to
avoid repetition or perpetuation of injustice,
hardship and anything ex facie illegal, more
2
particularly when a precedent runs counter to
the provisions of the Constitution. The first
two decisions were rendered without having
the benefit of the decisions of this Court, that
too concerning the interpretation of the
provisions of the Constitution...”
It was categorically held that the High Court was not correct in
invoking and applying the doctrine of stare decisis .
19. Furthermore, the Bombay High Court proceeded on the basis that
the “Halba-Koshtis” were treated in the region of Vidarbha as “Halbas”.
This Court noticed that the State of Maharashtra had issued a large
number of circulars pointing out that a large number of persons who did
not belong to Scheduled Tribe are taking benefit thereof. It was in the
aforementioned premise, this Court opined that the opinion of the Caste
Scrutiny Committee which was constituted in terms of the decision of
this Court in Kumari Madhuri Patil and Another v. Addl. Commissioner,
Tribal Development and Others [(1994) 6 SCC 241] had received the
statutory recognition by the State, stating:
“…The State Government issued resolution
dated 29-10-1980 in consonance with the
instructions given by the Central Government
laying down the guidelines on which the
2
inquiry should be held before issue of the caste
certificate. Another resolution dated 24.2.1981
was also issued for appointing a Scrutiny
Committee to verify whether the caste
certificate has been issued to a person who is
really entitled to it in view of the complaints of
misuse of reservational benefits on a large
scale. These resolutions were operative as they
had not been repealed. This Court in its
judgment dated 19-10-1984 State of
Maharashtra v. Abhay directed that the State of
Maharashtra should devise and frame a more
rational method for obtaining much in advance
a certificate on the strength of which a reserved
seat is claimed. But the High Court committed
an error in interpreting the scope of the circular
dated 31-7-1981 that the School Leaving
Certificate was conclusive of the caste. This
interpretation was plainly inconsistent with the
instructions and resolutions stated above.
Further, it may be also noticed here that the
Joint Parliamentary Committee did not make
any recommendation to include “Halba-Koshti”
in the Scheduled Tribes Order. At any rate the
Scheduled Tribes Order must be read as it is
until it is amended under clause (2) of Article
342. In this view also, the
circulars/resolutions/instructions will not help
Respondent 1 in any way. Even otherwise, as
already stated above, on facts found and
established the authorities have rejected the
claim of Respondent 1 as to the caste
certificate. The power of the High Court under
Article 227 of the Constitution of India, while
exercising the power of judicial review against
an order of inferior Tribunal being supervisory
and not appellate, the High Court would be
justified in interfering with the conclusion of
the Tribunal, only when it records a finding that
the inferior Tribunal’s conclusion is based upon
exclusion of some admissible evidence or
consideration of some inadmissible evidence or
2
the inferior Tribunal has no jurisdiction at all or
that the finding is such, which no reasonable
man could arrive at, on the materials on record.
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. Hence, we
have to essentially answer Question 2 also in
the negative. Hence it is answered
accordingly.”
It was furthermore noticed that even the Central Government had
issued several circulars which had been ignored by the High Court in
arriving at the said decision.
20. One of the questions which has been raised before us is as to
whether the offer of appointment made in favour of the respondent No. 1
2
by the Maharashtra Pollution Control Board dated 16.03.1998 is final so
as to attract the direction contained in paragraph 38 of Milind (supra).
Where factual foundation arrived at by a committee authorised in
this behalf concludes that a person is not a member of the Scheduled
Tribe would remain operative unless set aside by a superior court. The
judgment of the High Court in favour of the respondent No. 1 was
rendered on a wrong premise. The claim of the respondents may be that
he belonged to the Halba tribe but, therefor, no factual foundation was
placed before the High Court. The High Court relied solely on its earlier
decision to hold that Koshti would come within the purview of the
Scheduled Tribe of Halba or Halbi. The decision was rendered in 1988.
The records maintained by the school where the respondent studied were
not placed before the High Court. Only when the Caste Scrutiny
Committee, a statutory committee, proceeded to enquire into the matter,
the truth came out.
We do not mean to suggest that an opinion formed by the
Committee as regards the caste of the near relative of the applicant would
be wholly irrelevant, but, at the same time, it must be pointed out that
only because, by mistake or otherwise, a member of his family had been
2
declared to be belonging to a member of the Scheduled Tribe, the same
by itself would not be conclusive in nature so as to bind another
Committee while examining the case of other members of the family at
some details. If it is found that in granting a certificate in favour of a
member of a family, vital evidences had been ignored, it would be open
to the Committee to arrive at a different finding.
21. We reiterate that to fulfill the constitutional norms, a person must
belong to a tribe before he can stake his claim to be a member of a
notified Scheduled Tribe. When an advantage is obtained by a person in
violation of the constitutional scheme, a constitutional fraud is
committed.
22. Contention of Mr. Savant must be tested on the premise as to
whether the principle of res judicata applies in a case of this nature.
Principle of res judicata is undoubtedly a salutary principle. Even
a wrong decision would attract the principle of res judicata. The said
principle, however, amongst others, has some exceptions, e.g., when a
judgment is passed without jurisdiction, when the matter involves a pure
2
question of law or when the judgment has been obtained by committing
fraud on the court.
In Williams v. Lourdusamy and Anr. [(2008) 5 SCC 647], this
Court stated the law, thus:
“11. The principles of res-judicata although
provide for a salutary principle that no person
shall be harassed again and again, have its own
limitations. In O.S. No. 402 of 1987, the
respondent No. 2 was not impleaded as a party.
In his absence therefore, the issue as to whether
respondent No. 2 had entered into an oral
agreement of sale or not could not have been
adjudicated upon. The said Court had no
jurisdiction in that behalf. If that was decided in
the said suit, the findings would have been
nullities.”
23. Two legal principles which would govern a case of this nature, are:
(i) A decision rendered without jurisdiction being a nullity, the
principle of res judicata shall not apply.
(ii) If a fraud has been committed on the court, no benefit
therefrom can be claimed on the basis of thereof or otherwise.
2
24. In support of the first principle, we may at the outset refer to Chief
Justice of Andhra Pradesh and Others v. L.V.A. Dixitulu [(1979) 2 SCC
34] wherein this Court, while discussing the effect of Section 11 of the
CPC on a pure question of law or a decision given by a court without
jurisdiction, opined:
"Moreover, this is a pure question of law
depending upon the interpretation of Article
371D. If the argument holds good, it will make
the decision of the Tribunal as having been
given by an authority suffering from inherent
lack of jurisdiction. Such a decision cannot be
sustained merely by the doctrine of res judicata
or estoppel as urged in this case."
A Three – Judge Bench of this Court in Ashok Leyland Ltd. v.
State of Tamil Nadu and Anr. [(2004)3SCC1], held:
“120. The principle of res judicata is a
procedural provision. A jurisdictional question
if wrongly decided would not attract the
principle of res judicata. When an order is
passed without jurisdiction, the same becomes a
nullity. When an order is a nullity, it cannot be
supported by invoking the procedural principles
like, estoppel, waiver or res judicata.”
2
[See also Dwarka Prasad Agarwal (D) By LRs. and Anr. v. B.D.
Agarwal and Ors. ( 2003 ) 6 SCC 230, Union of India v. Pramod Gupta
(2005) 12 SCC 1 and National Institute of Technology and Ors. v. Niraj
Kumar Singh (2007) 2 SCC 481]
25. So far as the second principle, noticed by us, is concerned, there is
no dearth of authority.
Fraud vitiates all solemn acts. When an order has been obtained
by practising fraud on the court, it would be a nullity.
In Ganpatbhai Mahijibhai Solanki v. State of Gujarat and Ors.
[(2008) 3 SCC 556], this Court held:
“It is now a well settled principle that fraud
vitiates all solemn acts. If an order is obtained
by reason of commission of fraud, even the
principles of natural justice are not required to
be complied with for setting aside the same.”
It was further observed:
2
“In T. Vijendradas and Anr. v. M. Subramanian
and Ors., this Court held;
21. ...When a fraud is practiced on a court, the
same is rendered a nullity. In a case of nullity,
even the principles of natural justice are not
required to be complied with. [ Kendriya
Vidyalaya Sangathan and Ors. v. Ajay Kumar
Das and Ors. & A. Umarani v. Registrar,
Cooperative societies and Ors. ]
22. Once it is held that by reason of
commission of a fraud, a decree is rendered to
be void rendering all subsequent proceedings
taken pursuant thereto also nullity, in our
opinion, it would be wholly inequitable to
confer a benefit on a party, who is a beneficiary
thereunder....”
In K.D. Sharma v. Steel Authority of India Ltd. and Ors. [2008
(10) SCALE 227], this Court opined:
“16. Reference was also made to a recent
decision of this Court in A.V. Papayya Sastry
and Ors. v. Govt. of A.P. and Ors. (2007) 4
SCC 221 . Considering English and Indian
cases, one of us (C.K. Thakker, J.) stated:
It is thus settled proposition of law that a
judgment, decree or order obtained by playing
fraud on the Court, Tribunal or Authority is a
nullity and non est in the eye of law. Such a
judgment, decree or order --by the first Court or
by the final Court-- has to be treated as nullity
by every Court, superior or inferior. It can be
2
challenged in any Court, at any time, in appeal,
revision, writ or even in collateral proceedings.
17. The Court defined fraud as an act of
deliberate deception with the design of securing
something by taking unfair advantage of
another. In fraud one gains at the loss and cost
of another. Even the most solemn proceedings
stand vitiated if they are actuated by fraud.
Fraud is thus an extrinsic collateral act which
vitiates all judicial acts, whether in rem or in
personam.”
26. The order dated 11.08.1988, thus, would not operate as a res
judicata so as to disable it from considering the merit of the case of the
respondent No. 1 by the State of Maharashtra or Maharashtra Pollution
Control Board afresh. The decision of the High Court ex facie is
unsustainable.
27. We may at this juncture notice some decisions of this Court where
the question at hand has been discussed.
In State of Maharashtra and Others v. Ravi Prakash Babulalsing
Parmar and Another [(2007) 1 SCC 80], this Court held:
3
“23 . The makers of the Constitution laid
emphasis on equality amongst citizens. The
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.
24 . We, with respect, fail to appreciate the
approach of the High Court as it proceeded on
the premise that once the surname of the
respondent tallied with the name of the tribe,
which finds mention in one or the other entries
of the Schedule appended to the 1976 Order,
the same must be treated to be sacrosanct and
no enquiry in relation to the correctness of the
said certificate can be gone into by any
committee. The observations and directions of
the High Court, in our considered opinion, were
not only contrary to the judgments of the Court
but also fall short of the ground realities.
25 . Mr Arvind Savant, the learned Senior
Counsel, would place strong reliance on a
decision of this Court in Palghat Jilla Thandan
Samudhaya Samrakshna Samithi and in
particular paras 18 and 19 thereof, which read
as under: (SCC p.365)
“ 18 . These judgments leave no doubt that
the Scheduled Castes Order has to be applied as
it stands and no enquiry can be held or
evidence let in to determine whether or not
3
some particular community falls within it or
outside it. No action to modify the plain effect
of the Scheduled Castes Order, except as
contemplated by Article 341, is valid.
19 . The Thandan community in the instant
case having been listed in the Scheduled Castes
Order as it now stands, it is not open to the
State Government or, indeed, to this Court to
embark upon an enquiry to determine whether a
section of Ezhavas/Thiyyas which was called
Thandan in the Malabar area of the State was
excluded from the benefits of the Scheduled
Castes Order.”
In Addl. General Manager – Human Resource, Bharat Heavy
Electricals Ltd. v. Suresh Ramkrishna Burde [(2007) 5 SCC 336], this
Court held:
“14 . 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 the 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.”
3
In State of Maharashtra & Ors. v. Sanjay K. Nimje [2007(2)
SCALE 214], it was held that a person cannot get a benefit to which he is
not otherwise entitled to.
28. Our attention has been drawn to the fact that the appellant herein
had filed applications for leave to file two special leave applications; one
against the order dated 26.06.2006 and another against the order dated
11.08.1988. Whereas leave has been granted and notice had been issued
on 16.04.2007 in the order 26.06.2006, the same has been declined in
respect of the order dated 11.08.1988.
29. Contention of the learned counsel is that the order dated
11.08.1988 has even been given the stamp of finality by this Court.
We are unable to accept the said contention. Apart from the fact
that the petition for leave against the order dated 11.08.1988 was
dismissed on the ground of delay alone, the appellant herein is affected
by the impugned judgment of the High Court dated 26.06.2006. When
the order dated 11.08.1988 was passed, the judgment of the Bombay
High Court was prevailing. Appellant was not in picture at that point of
time.
3
A question, furthermore, arises as to whether in a disposed of writ
petition, a separate application was maintainable although cause of action
therefor arose subsequently. It is urged that the said application was
filed for implementing the earlier order of the court. It could not be so as
in the meantime the Caste Scrutiny Committee had already taken a
decision. Subsequent events of grave importance had taken place which
could not be ignored.
The Central Government had issued circulars. The Maharashtra
Pollution Control Board had also issued circulars. Appellant’s claim for
grant of certificate was rejected in the year 1997. If the respondent No. 1
was aggrieved thereby, he could have filed an appropriate writ petition
before the High Court immediately thereafter. He did not choose to do
so. Only when the question of grant of promotion arose, he sought to get
his claim of being promoted as a member of the Scheduled Tribe.
It was in that sense, it was obligatory on the part of the respondent
No. 1 to question the validity of the circulars issued by the Maharashtra
Pollution Control Board. A separate writ petition therefor should have
been filed. The Maharashtra Pollution Control Board as also the Caste
3
Scrutiny Committee was required to be impleaded therein. When the
order dated 11.08.1988 was passed by the High Court, no Caste Scrutiny
Committee existed. It came into force only after pronouncement of
judgment of this Court in Kumari Madhuri Patil (supra).
The Maharashtra Government also enacted the Maharashtra
Scheduled Caste, 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.
We, therefore, reject the said contention.
30. The Maharashtra Pollution Control Board in its affidavit
categorically stated that the appointment of the respondent No. 1 cannot
be treated to be final as no caste certificate had been issued by the
Statutory Committee.
31. We must now deal with the question of locus standi. A special
leave petition ordinarily would not have been entertained at the instance
of the appellant. Validity of appointment or otherwise on the basis of a
3
caste certificate granted by a committee is ordinarily a matter between
the employer and the employee. This Court, however, when a question is
raised, can take cognizance of a matter of such a grave importance suo
motu. It may not treat the special leave petition as a public interest
litigation, but, as a public law litigation. It is, in a proceeding of that
nature, permissible for the court to make a detailed enquiry with regard
to the broader aspects of the matter although it was initiated at the
instance of a person having a private interest. A deeper scrutiny can be
made so as to enable the court to find out as to whether a party to a lis is
guilty of commission of fraud on the Constitution. If such an enquiry
subserves the greater public interest and has a far reaching effect on the
society, in our opinion, this Court will not shirk its responsibilities from
doing so.
We could have dismissed this application on the simple ground
that the appellant has no locus standi. We did not do so because as a
constitutional court we felt it to be our duty to lay down the law correctly
so that similar mistakes are not committed in future. Apart from the
general power of the superior courts vested in it under Article 226 or
Article 32 of the Constitution of India, this Court is bestowed with a
greater responsibility by the makers of the Constitution in terms of
3
Articles 141 and 142 of the Constitution. Decisions are galore wherein
this Court unhesitatingly exercised such jurisdiction to resort to the
creative interpretation to arrive at a just result in regard to the societal
and/ or public interest. We thought that it is a case of that nature.
32. We may notice that recently such a legal principle has been
considered by this court in Indian Bank v. Godhara Nagrik Cooperative
Credit Society Ltd. and Another [2008 (7) SCALE 363].
This Court, however, while laying down the law suitably mould
the relief so as to do complete justice between the parties.
33. In Sandeep Subhash Parate v. State of Maharashtra and Others
[(2006) 7 SCC 501], this Court in the matter of grant of relief applied the
doctrine of proportionality directing:
“15. We do not find any lack of bona fides
on the part of the appellant. He, it will bear
repetition to state, got admission in the
professional course as far back in the year
1998. For about the last three years, he had not
been able to receive his degree of Engineering,
although, he pursued his studies after he had
passed class 12th examination. Just like
medical education, the State also incurs a heavy
expenditure in imparting other professional
3
education like engineering. We, in the peculiar
facts and circumstances of this case, are not
inclined to go into the question as regards
purported commission of fraud by the
appellant, particularly, when the University
admitted him without any demur whatsoever.
We are doing so having regard to the doctrine
of proportionality. The appellant has suffered a
lot. He might not be entirely responsible
therefor. He might have been under a bona fide
belief that he comes within the purview of
notified category. We, therefore, albeit with
much reluctance accept the fervent and
impassionate plea made by the learned counsel
appearing for the appellant that he be allowed
to obtain the degree. The same shall, however,
be subject to payment of Rs 1 lakh in favour
of the State of Maharashtra so as to recompense
the State to some extent the amount spent on
him for imparting education as a reserved
category candidate. Such payment must be
made within three months from this date. On
filing satisfactory proof of the deposit of such
an amount, Respondent 4 shall immediately
issue the degree in his favour. The appellant
shall not claim any benefit flowing from the
caste certificate obtained by him, which shall
stand cancelled. In future, for all purposes he
will be treated to be a person belonging to the
general category.”
34. In Union of India v. Dattatray S/o Namdeo Mendhekar and Others
[(2008) 4 SCC 612], this Court held:
“5. Milind (supra)related to a Medical College
admission. The question that arose for
3
consideration in that case was whether it was
open to the State Government or Courts or
other authorities to modify, amend or alter the
list of Scheduled Tribes and in particular
whether the "Halba-Koshti" was a sub-division
of 'Halba' Tribe. This Court held that it was not
permissible to amend or alter the list of
Schedule Tribes by including any sub-divisions
or otherwise. On facts, this Court found that the
respondent therein had been admitted in
medical course in ST category, more than 15
years back; that though his admission deprived
a scheduled tribe student of a medical seat, the
benefit of that seat could not be offered to
scheduled tribe student at that distance of time
even if respondent's admission was to be
annulled; and that if his admission was
annulled, it will lead to depriving the services
of a doctor to the society on whom the public
money had already been spent. In these peculiar
circumstances, this Court held that the decision
will not affect the degree secured by respondent
or his practice as a doctor but made it clear that
he could not claim to belong to a Scheduled
Tribe. But the said decision has no application
to a case which does not relate to an admission
to an educational institution, but relates to
securing employment by wrongly claiming the
benefit of reservation meant for Schedule
Tribes. When a person secures employment by
making a false claim regarding caste/tribe, he
deprives a legitimate candidate belonging to
scheduled caste/tribe, of employment. In such a
situation, the proper course is to cancel the
employment obtained on the basis of the false
certificate so that the post may be filled up by a
candidate who is entitled to the benefit of
reservation.”
3
We do not intend to do so in this case as the respondent No. 1 is in
service for a long time and the Bombay High Court allowed the writ
petition filed by him way back in 1988.
35. Invoking our jurisdiction under Article 142 of the Constitution of
India, keeping in view the long history of the case and its backdrop, we
are of the opinion that whereas it would not be proper for us to disturb
the very appointment of the appellant but it must be declared that his
appointment shall be treated to be that of a general category in the matter
of promotion or otherwise. He shall not be eligible to get any benefit as
a member of a Scheduled Tribe.
36. For the reasons aforementioned, the appeal is allowed with the
aforementioned directions. In the facts and circumstances of the case,
there shall be no order as to costs.
………………………….J.
[S.B. Sinha]
..…………………………J.
[Aftab Alam]
New Delhi;
August 29, 2008
4