TaxTMI 
TaxTMI 
TaxTMI 
2017 (7) TMI 1401
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....89/2015) For Appearing Parties: Maninder Singh, P.S. Narasimha, ASGs., Colin Gonsalves, Huzefa Ahmadi, Babu H. Marlapalle, Sr. Advs., Ali Qambar Zaidi, Satya Mitra, Satyajit A. Desai, Indra Sawhney, Rajiv Shukla, Shubham Saxena, Debesh Panda, Rajeev M. Roy, Gopal Balwant Sathe, Nishant Ramakantrao Katneshwarkar, Kishor Lambat, Rabin Majumder, Sanjay Kharde, Sunil Kumar Verma, Anagha S. Desai, Akash Kakade, Somanatha Padhan, Manish Pitale, Deeplaxmi S. Matwankar, Ravindra Keshavrao Adsure, Anand Landge, Siddeshwar Biradar, N. Shoba, Sri Ram J. Thalapathy, V. Adhimoolam, Shilp Vinod, Anirudha A. Joshi, Rajeev Maheshwaranand Roy, Uday B. Dube, M.Y. Deshmukh, Sushil Karanjkar, K.N. Rai, B. Krishna Prasad, Shreya Bhatnagar, Siddhesh Kotwal, Nalin Kohli, P.K. Mullick, R.B. Yadav, Piyush Sharma, Prabhas Bajaj, Akshay Amritanshu, Praveen Jain, Gunjan S. Jain, T.S. Sidhu, Mukesh Kumar, Simranjeet Singh, Vikas Soni, Advs. for M.V. Kini & Associates, Shubhangi Tuli, Rohan Sharma, Ajit Wagh, Advs. for Lambat & Associates, Chander Shekhar Ashri, Shikha Sarin, Rajesh Kumar, E.C. Agrawala, Aditi Deshpande, Advs. for Lambat and Associates, Gagan Sanghi, Rameshwar Prasad Goyal, Sudhanshu....
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.... sought the benefit of public employment on the basis of a claim to belong to a beneficiary group which has, upon investigation been found to be invalid. Despite the invalidation of the claim to belong to a Scheduled Caste or, as the case may be, a Scheduled Tribe or backward community, the intervention of the Court is invoked in the exercise of the power of judicial review. The basis for the invocation of jurisdiction lies in an assertion that equities arise upon a lapse of time and these equities are capable of being protected either by the High Court (in the exercise of its jurisdiction Under Article 226) or by this Court (when it discharges the constitutional function of doing complete justice Under Article 142). The present batch of cases then raises the fundamental issue as to whether such equities are sustainable at law and, if so, the limits that define the jurisdiction of the court to protect individuals who have secured access to the benefit of reservation inspite of the fact that they do not belong to the caste, tribe or class for whom reservation is intended. 5. A large body of precedent has evolved both in the High Courts as well as in this Court in seeking to find an....
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....a issued a G.R. which prescribed the procedure for obtaining (i) caste certificates from the Sub-divisional Officers; and (ii) validity certificates from a Scrutiny Committee. 7. In 1994, the systemic usurpation of benefits by persons who did not belong to the beneficiary groups came to the fore before this Court. There was before this Court, an urgent need expressed to set down a framework to regulate the grant of caste certificates and to scrutinise claims. The need for scrutiny and verification of caste claims was addressed in a judgment of this Court, speaking through a bench of two judges, in Kumari Madhuri Patil v. Additional Commissioner, Tribal Development (1994) 6 SCC 241. The judgment was delivered on 2 September 1994. While emphasizing the need to ensure that claims to belong to a beneficiary group must be carefully scrutinized, this Court observed thus: ...13. The admission wrongly gained or appointment wrongly obtained on the basis of false social status certificate necessarily have the effect of depriving the genuine Scheduled Castes or Scheduled Tribes or OBC candidates as enjoined in the Constitution of the benefits conferred on them by the constitution. The genu....
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....y 19 became a bone of contention particularly with persons belonging to the Halba-Koshti community claiming to be a sub-tribe of the designated tribe. A Division Bench of the High Court spoke on the issue on 4 September 1985 in Milind Sharad Katware v. State of Maharashtra (1986) 1 Bom CR 403. The Division Bench held that Halba-Koshti constituted a sub-division of the tribe "Halba-Halbi" under Entry 19 of the Scheduled Tribes Order, 1950. Halba-Koshtis were, in the view of the Division Bench, entitled to the status of a Scheduled Tribe on the ground that they were comprehended within a designated tribe namely, Halba-Halbi. In coming to this conclusion, the Division Bench opined that it is permissible to enquire whether a sub-division of a tribe which is not mentioned in the Scheduled Tribes Order, 1950 is nevertheless a part and parcel of a tribe which is designated. 11. Upon a challenge by the State of Maharashtra before this Court, the issue was referred to a Constitution Bench and eventually resulted in the judgment in State of Maharashtra v. Milind (2001) 1 SCC 4. The Constitution Bench held that the Scheduled Tribes Order had to be read as it is; and no evidence could be let ....
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....urpose of availing benefits of reservation in the matters of admissions and employment. If these benefits are taken away by those for whom they are not meant, the people for whom they are really meant or intended will be deprived of the same and their sufferings will continue. Allowing the candidates not belonging to Scheduled tribes to have the benefits or advantage of reservation either in admissions or appointments leads to making mockery of the very reservation against the mandate and the scheme of the Constitution. (ld. at p. 30) 13. Milind Sharad Katware whose cause had travelled from the Bombay High Court in 1985 to this Court had, by the time that the Constitution Bench resolved the issue on 28 November 2000 qualified as a doctor. He claimed the benefit of equities which had intervened in the meantime. They were recognized in the ultimate directions which were issued by this Court in the following observations: 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 practicing as a doctor. In this view and at this length of time it is for nobody's benefit to ....
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....ette on 23 May 2001. By a notification dated 17 October 2001, the Act came into force from 18 October 2001, in terms of Section 1(2). Section 3 requires every person claiming to belong to a Scheduled caste or tribe, other backward class or any other designated tribe or community seeking to obtain public employment or an admission to an educational institution or contesting an electoral seat in a local authority or a co-operative society to apply for the issuance of a caste certificate to a competent authority named by the State Government. Section 4 empowers the competent authority to issue a caste certificate upon being satisfied of the genuineness of the claim. Section 6 requires the State Government to constitute Scrutiny Committees for the verification of caste certificates issued by the competent authorities constituted Under Section 4(1). Sub-section (2) of Section 6 requires the beneficiary of a caste certificate to submit an application to a Scrutiny Committee for the verification of the caste certificate and for issuance of a validity certificate. The appointing authority is similarly required by Sub-section (3) to make an application to the Scrutiny Committee to verify th....
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....s of the opinion that the certificate was obtained fraudulently, it shall, by an order cancel and confiscate the certificate by following such procedure as prescribed, after giving the person concerned an opportunity of being heard, and communicate the same to the concerned person and the concerned authority, if any (2) The order passed by the Scrutiny Committee under this Act shall be final and shall not be challenged before any authority or court except the High Court Under Article 226 of the Constitution of India. Section 8 relates to the burden of proof and envisages that in any application for the issuance of a caste certificate by the competent authority; in any enquiry conducted by the competent authority or Scrutiny Committee or appellate authority; and in the trial of any offence under the Act, the burden of proving that the person belongs to such caste, tribe or class shall be on the claimant-applicant. Section 10 provides for the consequence of the invalidation of a caste certificate and reads thus: 10. (1) Whoever not being a person belonging to any of the Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other backward Classes o....
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....ing a person belonging to any of the Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category secures any benefits or appointments exclusively reserved for such Castes, Tribes, or Classes in the Government, local authority or any other company or corporation owned or controlled by the Government or in any Government aided institution, or secures admission in any educational institution against a seat exclusively reserved for such Castes, Tribes or Classes or is elected to any of the elective offices of any local authority or Co-operative Society against the office, reserved for such Castes Tribes or Classes by producing a false Caste Certificate; Shall, on conviction, be punished, with rigorous imprisonment for a term which shall not be less than six months but which may extend upto two years or with fine which shall not be less than two thousand rupees or both. (2) No court shall take cognizance of an offence punishable under this Section except upon a complaint, in writing, made by the Scrutiny Committee or by any other officer duly authorized by the Scrutiny Committee for this purpose. Offenc....
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....o the knowledge of the applicant and hence the burden of proof is placed on the claimant by Section 8. 16. The state legislature was evidently not content with a mere invalidation of a caste certificate which is founded on a false claim made by a candidate to belong to a designated caste, tribe or class. Section 6 (2) provides that a candidate who desires to obtain a benefit must apply well in time to the Scrutiny Committee for verification and similarly the appointing authority of a candidate who has been selected for appointment but has not obtained a validity certificate must apply to the Scrutiny Committee for verification. The legislature however was cognizant of the fact that by the time a scrutiny takes place before the Scrutiny Committee the candidate may have obtained the benefit of a concession reserved for a caste, tribe or class. As a matter of public interest, the legislation stipulates that the benefits which have been obtained on the basis of a false caste certificate shall be withdrawn upon the invalidation of the claim by the Scrutiny Committee. The ambit of Section 10 (1) extends, among other things, to an admission which is secured in an educational institution ....
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....s, equities are pressed in aid, chief among them being the lapse of time since the acquisition of benefits on the basis of a claim to belong to a designated caste or tribe. As decided cases indicate, the claim for equity is coupled with a "voluntary" undertaking that the person would not secure or claim any future benefits on the basis that he or she belongs to the Scheduled Caste, Schedule Tribe or socially and educationally backward class on the basis of which the original appointment or admission was obtained. In the case of admissions to educational institutions, particularly institutions of higher learning, the additional ground which is often urged is that the withdrawal of benefits obtained in the past would amount to a societal loss since scarce productive resources of the nation are invested in providing for training and education to professionals in a discipline such as medicine. 19. In Madhuri Patil (supra), a Bench of two learned Judges set down a principled rationale as to why a claim for equity by a person who is not found to belong to the designated caste, tribe or class cannot be countenanced. The Court observed: 16. Whether Appellants are entitled to their furth....
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....und to have approached an officer without jurisdiction and after showing the order of the High Court in the case of her sister Suchita, secured a caste certificate and got admission. This Court observed that though she was in the midst of her B.D.S. studies in the second year, she could not continue as a student belonging to Mahadeo Koli Scheduled Tribe. She could only obtain admission as a general candidate and continue her studies. These directions are referable to the jurisdiction conferred on this Court Under Article 142. 20. The next decision which is of relevance on the issue, is a judgment of three Judges of this Court in R. Vishwanatha Pillai v. State of Kerala (2004) 2 SCC 105. In that case the Appellant who did not belong to a designated reserved community obtained a caste certificate and was selected as a Deputy Superintendent of Police on a seat reserved for the Scheduled Castes. However, it was found upon a complaint that the Appellant did not belong to a Scheduled Caste and the Scrutiny Committee rejected his claim. The order of the Scrutiny Committee was upheld by the High Court and by this Court. Subsequently at the behest of the Appellant the Central Administrativ....
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....Judges also rejected the submission that since the Appellant had rendered 27 years of service, the order of dismissal should be substituted with an order of compulsory retirement or removal to protect his pensionary benefits. The Court observed: 19....The rights to salary, pension and other service benefits are entirely statutory in nature in public service. Appellant obtained the appointment against a post meant for a reserved candidate by producing a false caste certificate and by playing a fraud. His appointment to the post was void and non est in the eyes of law. The right to salary or pension after retirement flow from a valid and legal appointment. The consequential right of pension and monetary benefits can be given only if the appointment was valid and legal. Such benefits cannot be given in a case where the appointment was found to have been obtained fraudulently and rested on false caste certificate. A person who entered the service by producing a false caste certificate and obtained appointment for the post meant for Scheduled Caste thus depriving the genuine Scheduled Caste of appointment to that post does not deserve any sympathy or indulgence of this Court. A person....
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....Article 142. For it was on that basis that the court in Avinash Mandivikar held that no case was made out for protecting the services of a bank employee who had obtained employment on the basis of a false claim. Besides, this Court also held that the first Respondent having perpetrated a fraud, a claim for protection will not be legally sustainable and a person who had obtained employment by illegitimate means could not continue to enjoy the fruits of the appointment despite the clear finding by the Scrutiny Committee that "he does not even have a shadow of a right even to be considered for appointment". This Court relied upon the earlier decision in Vishwanatha Pillai (supra) in coming to its conclusion. 22. Another decision of two learned Judges was in Additional General Manager/Human Resources, Bharat Heavy Electricals Ltd. v. Suresh Ramakrishna Burde (2007) 5 SCC 336 where a Division Bench of the Bombay High Court had ordered reinstatement subject to the condition that the employee would not stake a claim to belong to the Scheduled Tribe in future. The claim of the employee to belong to the Halba Scheduled Tribe was invalidated by the Scrutiny Committee. The employee had been ....
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.... 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. (ld. at p. 340-341) In this view of the matter, the High Court was held to be in error in setting aside the order of termination and in directing reinstatement of the employee. 23. A Bench of two Judges of this Court in State of Maharashtra v. Sanjay K. Nimje (2007) 14 SCC 481 considered a case where the Respondent had been appoin....
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....wn to students or to persons who were found to have acted bona fide this "would not mean that this Court would pass an order contrary to or inconsistent with the provisions of a legislative act". 24. The position in law was reaffirmed in a subsequent decision of a Bench of three Judges in Union of India v. Dattatray (2008) 4 SCC 612. The Respondent was appointed as an Assistant Professor of Psychiatry in a government hospital on the strength of a claim to belong to a Scheduled Tribe. The Scrutiny Committee in an order of March 1999 found that the claim that he belonged to the Halba Tribe was false. The High Court upheld the invalidation of the tribe claim but held that the Respondent would not be entitled to any benefit as a member of the Scheduled Tribe from the date of its decision. In consequence, the services of the Respondent were directed not to be disturbed. This Court held that the High Court had misconstrued the decision of the Constitution Bench in Milind (supra) and adverted to the peculiar circumstances in which protection was granted in that case to a student who had been admitted to a medical course over 15 years ago. Distinguishing that decision with the case at han....
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.... laying down a proposition that in every case where a candidate's caste claim is rejected by a Caste Verification Committee, the candidate should invariably be permitted to retain the benefit of the admission and the consequential degree, irrespective of the facts. (ld at p. 654) In the case at hand, though the Scrutiny Committee had rejected the claim of the Appellant even prior to his admission to the professional degree course in engineering, the High Court had directed by an interim order the grant of provisional admission. This Court observed that since the admission to an engineering course had been obtained nearly 13 years earlier and the candidate had already secured a degree, he should be permitted to retain the benefit of the degree subject to the condition that he would not claim any further benefit as a member of a Scheduled Tribe and any expenditure incurred in terms of an exemption from the fee or a grant of scholarship, would be recovered. The following decisions of this Court, the act of obtaining a benefit reserved for designated castes, tribes and classes by an individual who does not belong to the designated community, on the basis of a false caste claim ha....
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....uine candidate falling in either of the said categories, of appointment to that post, does not deserve any sympathy or indulgence of this Court. He who comes to the Court with a claim based on falsity and deception cannot plead equity nor the Court would be justified to exercise equity jurisdiction in his favour... 26. We may now advert to a line of precedent, upon which reliance has been placed by the private party claimants, to indicate the circumstances in which recourse has been taken by this Court to its jurisdiction Under Article 142. Sandip Subhash Parate v. State of Maharashtra (2006) 7 SCC 501, is a decision of a Bench of two Judges of this Court. The claim of the Appellant to belong to the Halba Scheduled Tribe formed the basis of his admission to the B.E. degree course at the University of Pune. The claim was invalidated by the Scrutiny Committee. In a writ petition challenging the order of the Scrutiny Committee the Appellant had the benefit of an interim order. Eventually the Writ Petition was allowed and the proceedings were remanded to the Scrutiny Committee. The Scrutiny Committee on remand rejected the claim against which another writ petition was filed. Though no....
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....ployee was pressed in aid in a judgment of a Bench of two Judges of this Court in Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar (2008) 9 SCC 54 as a ground for the exercise of the jurisdiction Under Article 142. In that case the first Respondent was, on the strength of a Scheduled Tribe certificate of August 1987, employed in the State Pollution Control Board and his status as a member of a Scheduled Tribe was confirmed in a decision of the High Court in August 1988. The Scrutiny Committee, however, invalidated the claim of the Respondent to belong to the Halba Scheduled Tribe. However, the High Court held that its earlier decision of August 1988 had attained finality and that the status of the first Respondent could not be questioned again. This Court by its judgment held that when an advantage is obtained by a person in violation of the constitutional scheme a constitutional fraud is committed. The earlier decision of the High Court which was rendered without a factual foundation was held not to operate as res judicata. However, since the Bombay High Court had allowed the writ petition filed by the Respondent in 1988 and he had continued in service since long, recourse was tak....
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....ich was 10 years after its issue cancelled by the Scrutiny Committee. (ld. at p. 440) This decision of two learned judges does not indicate that the provisions of Maharashtra Act XXIII of 2001 were noticed. 30. The issue was revisited in another decision of two judges in Shalini Gajananrao Dalal v. New English High School Association (2013) 16 SCC 526. The Appellant obtained a certificate of belonging to the Halba Scheduled Tribe in July 1974. On the strength of a claim that the Gadwal Koshti caste (to which she belonged) had consanguinity to the Halba Scheduled Tribe, she was appointed as an Assistant Teacher and was confirmed in 1984. She was promoted as a Head Mistress in 1994. The Scrutiny Committee in August 2003 held that the caste certificate obtained by the Appellant was invalid. A learned Single Judge of the High Court granted protection in service on the strength of a G.R. dated 15 June 1995. Thereafter protracted litigation ensued which eventually resulted in a Single Judge of the High Court setting aside the order of reinstatement passed by the School Tribunal. This order was confirmed in appeal by a Division Bench of the High Court. Summarising the position which eme....
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....tray cannot be construed to have overruled earlier decisions of two Judges. In that context this Court has held that: 8. A reading of the impugned judgment [Shalini v. New English High School Assn., LPA No. 527 of 2009, order dated 25-11-2009 (Bom)] requires us to clarify an important aspect of the doctrine of precedence. Dattatray [Union of India v. Dattatray (2008) 4 SCC 612 : (2008) 2 SCC (L & S) 6] is the only three-Judge Bench decision, and therefore indisputably holds pre-eminence. However, by that time several decisions had already been rendered by two-Judge Benches some of which have already been discussed above. It was within the competence of Dattatray [Union of India v. Dattatray (2008) 4 SCC 612 : (2008) 2 SCC (L & S) 6] Bench to overrule the other two-Judge Benches. Despite the fact that it has not done so the per incuriam principle would not apply to the decision because it was a larger Bench. However, no presumption can be drawn that the Dattatray [Union of India v. Dattatray (2008) 4 SCC 612 : (2008) 2 SCC (L & S) 6] three-Judge Bench decision was of the opinion that the earlier two-Judge Bench decisions had articulated an incorrect interpretation of the law. That....
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....ut any back-wages subject to the condition that she would not be entitled to any further promotion as a Scheduled Tribe candidate. 31. In R. Unnikrishnan v. V.K. Mahanudevan (2014) 4 SCC 434 the Respondent applied for the grant of a Scheduled Caste certificate on the basis that he was a Thandan which was a notified Scheduled Caste. The Tahsildar found that the Respondent did not belong to the Scheduled Caste in question. In the course of writ proceedings, the High Court directed the Tahsildar to issue a caste certificate following which the Respondent was appointed as an Assistant Executive Engineer in a Special Recruitment Drive for Scheduled Caste/Scheduled Tribe candidates. Subsequently, following the decision of a Full Bench of the Kerala High Court, the caste certificate of the Respondent came under scrutiny and it was found that the Respondent actually belonged to the Ezhuva community which fell in the OBC category. The Respondent challenged the enquiry proceedings in a Writ Petition. The High Court quashed the enquiry. The Division Bench of the High Court in appeal directed a fresh enquiry into the caste status of the Respondent. A fresh enquiry resulted in the finding that....
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....Central Excise Department in June 1995 against a vacancy reserved for a Scheduled Tribe. The letter of appointment provided that the appointment was provisional and subject to verification of the caste certificate. His services were terminated in 2004 following a decision of the Scrutiny Committee that he belonged to the Koshti which is not a Scheduled Tribe in the State of Maharashtra. The Appellant submitted a representation on the receipt of the order of the Scrutiny Committee claiming that he had not furnished false information and the caste certificate was obtained by him bona fide on the basis of the school record. The Appellant also claimed that the issue as to whether the Koshti caste is a part of the Halba Scheduled Tribe was the subject matter of intense debate until it was resolved on 28 November 2000 by the Constitution Bench in Milind (supra). Eventually he moved the Central Administrative Tribunal which directed that the appointment of the Appellant which was made prior to the decision in Milind (supra) should be protected. When the decision of the Tribunal was assailed, the Division Bench of the High Court relied on the decision in Dattatray (supra) and restored the ....
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....notified Scheduled Tribe Halba in Maharashtra.(ld. at p. 721) Following this principle, it was held that the Appellant was not entitled to any relief on the finding that his appointment as Chemical Engineer had not attained finality. Once the Scrutiny Committee held that the Appellant did not belong to the Halba community the High Court was held to be justified in allowing the writ petition filed by the Department. The order of termination was hence restored. The decision of this Court in Khawas specifically rejects the submission that the decision of the Constitution Bench in Milind would protect all appointments made before 28 November 2000 even though they were not final. If the appointment was yet to be subject to scrutiny by the Caste Scrutiny Committee it would evidently not have attained finality prior to the date of the judgment in Milind (supra). F. Decisions of the Bombay High Court 33. In Ramesh Suresh Kamble v. State of Maharashtra (2007) 1 Mh. L.J. 423, a Full Bench of the Bombay High Court consisting of Mr. Justice R M Lodha (as the learned Chief Justice then was), Mr. Justice SA Bobde (as the learned Judge then was) and Mr. Justice SB Deshmukh considered the prov....
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....ourt in Ganesh Rambhau Khalale v. State of Maharashtra (2009) 2 Mh. L.J. 788 held that the directions which were issued by the Constitution Bench of this Court in paragraph 38 of its decision in Milind were in exercise of the power conferred by Article 142 of the Constitution. 34. A Division Bench of the Bombay High Court in Priyanka Omprakash Panwar v. State of Maharashtra (2009) 4 Mh L.J. 847 has construed the provisions of Section 10 of Maharashtra Act XXIII of 2001 in holding thus: 3....The balance between the equitable consideration of protecting the interest of a student who has pursued his education and the public interest in protecting the reserved categories against the usurpation of their constitutional entitlements by imposters has now been made by the State Legislature. ... The Legislature has expressly stipulated that a degree or diploma obtained on the basis of a caste claim which is invalidated shall stand cancelled. In the face of an express legislative provision, this Court shall not be justified in exercising its equitable jurisdiction. Considerations of equity that guide the Court in constitutional adjudication Under Article 226 of the Constitution must be in ....
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....erruled the earlier judgments of the Full Benches of the High Court in Sujit Vasant Patil and Ganesh Rambhau Khalale (supra). In the view of the Full Bench an innocent statement made by error should not in the absence of an element of deceitfulness operate to deprive a candidate of the benefits obtained on the foundation of a false certificate. The Full Bench held, following decision of this Court in Kavita Solunke, that: From the decision of the Apex Court in Kavita Solunke's case, it can be gathered that the protection granted in Milind's case would not be available where any fraud or any fabrication or any misrepresentation is made with a view to obtain an undeserved benefit in the matter of appointment. If there is no accusation that the certificate was false, fabricated or manipulated by concealment or otherwise, the refusal of benefit flowing from the decision in Milind's case may not be justified. The judgment of the Full Bench also holds that the directions which were issued by the Constitution Bench in Milind are in two parts-the first being to save the admission and degree secured while the other is of a general nature invoking the doctrine of prospective o....
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....on 7 empowers the Scrutiny Committee to cancel any certificate which has been obtained before or after the commencement of the Act, the expression "before or after the commencement of this Act" is absent in Sections 10 and 11. Consequently, though Section 7 may be retroactive in operation, Sections 10 and 11 which relate to the withdrawal of benefits and in regard to penal offences are prospective. Besides the above submissions it has also been urged that in so far as Halba-Koshtis are concerned: (i) Though in Entry 19 of the Scheduled Tribes Order, 1950 only " Halba-Halbi" has been recognised as a Scheduled Tribe, until the decision of the Constitution Bench in Milind, Halba-Koshtis were "socially and officially" recognized and accepted as a sub-tribe of Halba-Halbi. This may have been as a result of the judicial pronouncement made by the High Court from 1956 or the circulars issued by the State Government; (ii) It was on 28 November 2000 that the Constitution Bench in Milind held that Halba-Koshtis do not fall within the purview of Entry 19 of the Scheduled Tribes Order, 1950. Hence, it cannot be said that a caste certificate issued at any time prior to 28 November 2000 in f....
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....e been earmarked pursuant to constitutional provisions. By its directions which this Court issued on 2 September 1994 provision was made for the constitution of committees for verification of claims belonging to a designated caste, tribe or class. This Court explained the modalities to be followed by the Scrutiny Committees and the manner in which action would be taken if a claim was found to be false. The directions which were issued by this Court envisaged that upon a claim being found to be false or spurious: (i) the Caste Scrutiny Committee should pass an order cancelling and confiscating the certificate; (ii) the cancellation of the certificate should be communicated to the educational institution where the candidate has been admitted or to the appointing authority where the candidate is employed; (iii) upon this, the head of the institution or the appointing authority should cancel the admission or appointment without further notice and debar the candidate from further study or continuance in office; and (iv) a prosecution should be launched against the candidate or, as the case may be, the parents or guardians responsible for making the false claim. The regime postul....
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....iment is caused to the entire class of persons for whom reservations are intended, the members of which are excluded as a result of an admission granted to an imposter who does not belong to the class. The withdrawal of benefits, either in terms of the revocation of employment or the termination of an admission was hence a necessary corollary of the invalidation of the claim on the basis of which the appointment or admission was obtained. The withdrawal of the benefit was not based on mens rea or the intent underlying the assertion of a false claim. In the case of a criminal prosecution, intent would be necessary. On the other hand, the withdrawal of civil benefits flowed as a logical result of the invalidation of a claim to belong to a group or category for whom the reservation is intended. This was the position under the regime which prevailed following the decision in Madhuri Patil. 40. The Constitution Bench of this Court which decided Milind (supra) was on a reference whether it is permissible to hold an enquiry and let in evidence to decide or declare that any tribe or tribal community or a part or group within the tribe or community is included in the general name, even tho....
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....on to this principle consists of those cases where, in exercise of the power conferred by Article 142, the Court considered it appropriate and proper to protect the admission which was granted or, as the case may be, the appointment to the post. 42. In Kavita Solunke (supra) the Appellant had been appointed on the strength of a claim to belong to the Halba Scheduled Tribe in August 1995. After the tribe claim was verified by the Scrutiny Committee it was found that the Appellant was in fact a Koshti and not a member of the Halba Scheduled Tribe following which an order of termination was issued. The sole ground on which the termination was challenged and which was accepted by the bench of two judges was that since the appointment of the Appellant had attained finality, it could not have been set aside on the ground that the Appellant did not belong to a Scheduled Tribe. Maharashtra Act XXIII of 2001 was evidently not placed before the court in Kavita Solunke (supra) and has not been noticed. Upon the enactment of the Act, the invalidation of a caste certificate by the Scrutiny Committee would as a statutory mandate result in the withdrawal of the benefits which had accrued on the ....
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....cision which reads thus: 9. It is not the intent of law to punish an innocent person and subject him to extremely harsh treatment. That is why this Court has devised and consistently followed that taxation statutes, which almost always work to the pecuniary detriment of the Assessee, must be interpreted in favour of the Assessee. Therefore, as we see it, on one bank of the Rubicon are the cases of dishonest and mendacious persons who have deliberately claimed consanguinity with the Scheduled Castes or Scheduled Tribes, etc. whereas on the other bank are those marooned persons who honestly and correctly claimed to belong to a particular Scheduled Caste/Scheduled Tribe but were later on found by the relevant authority not to fall within the particular group envisaged for protected treatment. In the former group, persons would justifiably deserve the immediate cessation of all benefits, including termination of services. In the latter, after the removal of the nebulousness and uncertainty, while the services or benefits already enjoyed would not be negated, they would be disentitled to claim any further or continuing benefit on the predication of belonging to the said Scheduled Cast....
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....nefits while Sub-section (3) provides for the cancellation of a degree, diploma or educational qualification. Sub-section (4) provides for disqualification from electoral office. The falsity of the certificate is the basis of an order Under Section 7. Section 10 provides the consequence. The challenge to an order of the Scrutiny Committee (invalidating a caste or tribe certificate) may fail or succeeds. If the challenge before the High Court succeeds, no question of the consequence Under Section 10 arises. If the challenge fails, the consequence Under Section 10 follows the finding in the order Under Section 7 that the certificate is false. Similarly, if the order Under Section 7 is not challenged, or if the challenge is given up, there is no occasion to protect the benefits secured on the basis of a certificate which is invalidated. The expression "false" must be construed in contra-distinction to that which is true, genuine or authentic. Falsity in this sense means the setting up of a claim to belong to a reserved category. 45. Section 10, it must be noted, provides for the withdrawal of civil benefits which have accrued to an individual on the strength of a claim to belong to a....
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....has been placed on the provisions of Section 10 by the judgment in Shalini (supra) is evidently incorrect. 46. Service under the Union and the States, or for that matter under the instrumentalities of the State subserves a public purpose. These services are instruments of governance. Where the State embarks upon public employment, it is under the mandate of Articles 14 and 16 to follow the principle of equal opportunity. Affirmative action in our Constitution is part of the quest for substantive equality. Available resources and the opportunities provided in the form of public employment are in contemporary times short of demands and needs. Hence the procedure for selection, and the prescription of eligibility criteria has a significant public element in enabling the State to make a choice amongst competing claims. The selection of ineligible persons is a manifestation of a systemic failure and has a deleterious effect on good governance. Firstly, selection of a person who is not eligible allows someone who is ineligible to gain access to scarce public resources. Secondly, the rights of eligible persons are violated since a person who is not eligible for the post is selected. Thi....
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....n held that judicial discretion can be exercised only when there are two or more possible lawful solutions. Courts cannot give a direction contrary to a statute in the purported exercise of judicial discretion. The power Under Article 142 of the Constitution is one which is wielded with circumspection and not in a manner which would defeat statutory intent, purpose and language. Aharon Barak in his book titled "Judicial Discretion (1989)" states thus: 16....Discretion assumes the freedom to choose among several lawful alternatives. Therefore, discretion does not exist when there is but one lawful option. In this situation, the Judge is required to select that option and has no freedom of choice. No discretion is involved in the choice between a lawful act and an unlawful act. The Judge must choose the lawful act, and he is precluded from choosing the unlawful act. Discretion, on the other hand, assumes the lack of an obligation to choose one particular possibility among several. (ld at p. 430) 48. The Full Bench judgment of the Bombay High Court in Arun Sonune (supra) has essentially construed the judgments in Kavita Solunke (supra) and in Shalini (supra) as having impliedly ove....
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....ion that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. However, the Rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Equally the Rule against retrospective construction is not applicable to a statute merely because a part of the requisites for its action is drawn from a time antecedent to its passing G P Singh, On the Interpretation of Statutes -4 Edition pages 580, 583. Maharashtra Act XXIII of 2001 provides in Section 1 (2) that it shall come into force on such dates as the State Government may, by notification in the official gazette, appoint upon receiving assent of the President. The Act was notified to come into force by a government notification dated 17 October 2001 with effect from 18 October 2001. Prior to the enforcement of the Act, the regime which held the field was in terms of the directions that were issued by this Court in its judgment dated 2 September 1994 in Madhuri Patil. The directions which were issued by this Court comprehended: (i) Applications for the grant of caste certif....
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....sion being founded on a claim to belong to a specified caste, tribe or class, it is rendered void upon the claim being found to be untrue. The same must hold in the case of an appointment to a post. Therefore, the absence of the words "before or after the commencement of this Act" in Section 10 makes no substantive difference because a withdrawal of benefit is an event which flows naturally and as a plain consequence of the invalidation of the claim. Moreover, as we have seen even prior to the enactment of the state legislation, the benefit which was secured on the basis of a caste claim was liable to be withdrawn upon its invalidation. The Act has hence neither affected vested rights nor has it imposed new burdens. The Act does not impair existing obligations in Sections 7 and 10. However, an analysis of the provisions of Section 11 demonstrates that the provision creates offences and provides for penalties. Under Section 11(1) (a) the offence consists of obtaining a false caste certificate (by furnishing false information), filing a false statement or document or by any fraudulent means. Under Section 11(1)(b) the offence consists in securing a benefit exclusively reserved for d....
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....he student has substantially progressed in the course of studies and a cancellation of admission would result in prejudice not only to the student but to the system as well. When the student has completed the degree or diploma, a submission against its withdrawal is urged a fortiorari. In our view, the state legislature has made a statutory decision amongst competing claims, based on a public policy perspective which the court must respect. The argument that there is a loss of productive societal resources when an educational qualification is withdrawn or a student is compelled to leave the course of studies (when he or she is found not to belong to the caste or tribe on the basis of which admission to a reserved seat was obtained) cannot possibly outweigh or nullify the legislative mandate contained in Section 10 of the state legislation. When a candidate is found to have put forth a false claim of belonging to a designated caste, tribe or class for whom a benefit is reserved, it would be a negation of the Rule of law to exercise the jurisdiction Under Article 142 to protect that individual. Societal good lies in ensuring probity. That is the only manner in which the sanctity of t....
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....in mind immediate social or societal gains, the perspective of consideration would be different. The submission canvassed needs to be considered in the proper perspective. We shall venture to drive home the point by an illustration. We may well not have won our freedom, if freedom fighters had not languished in jails ... and if valuable lives had not been sacrificed. Depending on the situation, even civil liberty or life itself, may be too trivial a sacrifice, when national interest is involved. It all depends on the desired goal. The Preamble of the Indian Constitution rests on the foundation of governance on the touchstone of justice. The basic fundamental right of equality before law and equal protection of the laws is extended to citizens and non-citizens alike through Article 14 of the Constitution on the fountainhead of fairness. The actions of the Appellants are founded on unacceptable behaviour, and in complete breach of the Rule of Law. Their actions constitute acts of deceit invading into a righteous social order. National character, in our considered view, cannot be sacrificed for benefits -- individual or societal. If we desire to build a nation on the touchstone of eth....
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....n electoral office obtained on the basis that the candidate belongs to a reserved category; and (f) Prosecution for a criminal offence; (iii) The decisions of this Court in R. Vishwanatha Pillai and in Dattatray which were rendered by benches of three Judges laid down the principle of law that where a benefit is secured by an individual - such as an appointment to a post or admission to an educational institution - on the basis that the candidate belongs to a reserved category for which the benefit is reserved, the invalidation of the caste or tribe claim upon verification would result in the appointment or, as the case may be, the admission being rendered void or non est. (iv) The exception to the above doctrine was in those cases where this Court exercised its power Under Article 142 of the Constitution to render complete justice; (v) By Maharashtra Act XXIII of 2001 there is a legislative codification of the broad principles enunciated in Madhuri Patil. The legislation provides a statutory framework for regulating the issuance of caste certificates (Section 4); constitution of Scrutiny Committees for verification of claims (Section 6); submission of applications for verifi....
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....ecutive Magistrate, Panvel, stating that the applicant was a Hindu Mahadev Kohli and hence belonged to a Scheduled Tribe. Upon a declaration submitted by the Respondent he was appointed to the post on 8 January 1985 in the Scheduled Tribe quota. The Respondent received promotional benefits in the post of Dusting Operator (13 August 1990), Senior Dusting Operator (30 December 2000), Picker (1 December 2003) and Senior Picker (20 December 2005). The caste certificate submitted by the Respondent was invalidated by the Scrutiny Committee, Konkan Division, Thane. The claim of the Respondent to belong to the Mahadeo Koli Scheduled Tribe was found not to be established and the certificate was accordingly invalidated and cancelled. Following this his services were terminated on 4 October 2013. The Respondent instituted writ proceedings before the Bombay High Court to challenge the order of the Scrutiny Committee and his termination from service. By a judgment dated 4 April 2014 the High Court noted that the Respondent was seeking only protection of his services and was willing to give up the claim of belonging to a Scheduled Tribe. By its judgment, the High Court accepted the contention ....
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....which was allowed by a learned Single Judge of the High Court on 16 October 2009 and the employee was directed to be reinstated. In an appeal by the employer, the Division Bench set aside the judgment of the learned Single Judge on 17 April 2010 and dismissed the writ petition. A Special Leave Petition filed by the employee Under Article 136 of the Constitution was dismissed by this Court as not pressed on 1 October 2010. Thereafter the Respondent filed a writ petition praying for his reinstatement and protection of his service. By the judgment dated 5/8/9/10 July 2013 the High Court held that the employee was entitled to the protection of his services. From the narration of the facts it is clear that the Writ Petition filed by the employee challenging the order of the Scrutiny Committee was dismissed on 7 August 2009 and it has been held that he does not belong to the Halba Scheduled Tribe. The caste certificate which was obtained by the Respondent has been demonstrated to be a false caste certificate. The challenge to the order of termination also attained finality since the Special Leave Petition against the judgment of the High Court was dismissed as not pressed. In the circu....
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....ndent was appointed as a Lecturer on a post reserved for the Scheduled Tribes on 20 March 1997 on the basis of a caste certificate dated 18 May 1995 stating that she belongs to the Halba Scheduled Tribe. The Scrutiny Committee has invalidated the caste certificate and directed it to be confiscated. The High Court by its order dated 26 November 2012 has confirmed the order of invalidation but has granted protection of service. By a subsequent order the High Court has ordered the State to consider revision/refixation of pay scales. For the reasons indicated by this Court while disposing of Civil Appeal Nos. 9155 and 9157 of 2015 and for those contained in the body of the judgment, the Civil Appeals are allowed. The impugned judgments and orders of the High Court are set aside. No other submission is urged. There shall, however, be no order as to costs. 6. Mahatma Fule Krishi Vidyapeeth v. Nagnath Baburao Mangrule and Ors. (Civil Appeal No. 8926 of 2015): The Respondent was appointed as an Agricultural Assistant on a post reserved for the Scheduled Tribes on 22 July 1996 on the basis of a caste certificate dated 3 February 1991 stating that he belongs to the Mahadeo Koli tribe....
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....Appellant was confirmed on 1 March 1999. The second Respondent sought a clarification from Tehsildar, Nagpur to ascertain whether the caste certificate is genuine or not. The Tehsildar by a letter dated 17 October 2008 stated that the name of the Appellant is not borne in the records. Accordingly the second Respondent terminated the services of the Appellant by an order dated 3 November 2009. The Scrutiny Committee by its order dated 5 October 2012 invalidated the caste claim of the Appellant. The High Court by its judgment dated 11 March 2013 has declined to grant protection to the services of the Appellant upon the invalidation of his claim to belong to the Halba Scheduled Tribe by the Scrutiny Committee on 5 October 2012. There is a clear and patent misuse of process by the Appellant. In the absence of the caste validity certificate, the appointment of the Appellant cannot be held to have attained finality. Having due regard to the reasons contained in the body of this judgment, we find no error in the judgment of the High Court. The Civil Appeal shall stand dismissed. No other submission is urged. There shall be no order as to costs. 9. Chhaya D/o. Yadaorao Barapatre @ Ch....
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....ned in the body of the judgment and having due regard to the invalidation of the claim of the Respondent by the Scrutiny Committee, we find no error in the judgment of the High Court. The Civil Appeals are accordingly dismissed. There shall be no order as to costs. 11. Shri Shivaji Education Society and Anr. v. State of Maharashtra and Ors. (Civil Appeal No. 8601/17 @ SLP (C) No. 289 of 2016): The third Respondent was appointed as an Assistant Teacher on a post reserved for the Scheduled Tribes on the basis of a caste certificate showing him as belonging to the Thakur Scheduled Tribe. By its order dated 23 April 2008 the Scrutiny Committee invalidated the tribe claim and confiscated his certificate. The services of the third Respondent were terminated on 12 May 2008. While dismissing the writ petition challenging the order of the Scrutiny Committee the High Court by its order dated 15 December 2015 has none the less directed reinstatement of the third Respondent subject to an undertaking that he would not claim the benefit of belonging to the Scheduled Tribe in future. Once the tribe claim of the Respondent has been held to be false, the judgment of the High Court is unsustai....
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....ase (supra), has by its judgment dated 16 February 2015 granted reinstatement to the Respondent. For the reasons contained in the body of the judgment, the appeal filed by the employer shall have to be allowed and is accordingly allowed. The impugned judgment of the High Court dated 16 February 2015 is set aside. No other submission is urged. There shall be no order as to costs. 14. Mumbai Metropolitan Region Development Authority v. Rajendra Ramchandra Dhakate and Anr. (Civil Appeal 8609/17 @ SLP (C) No. 13409 of 2015): The claim of the Respondent to belong to the Halba Scheduled Tribe has been invalidated by the Scrutiny Committee by its order dated 30 July 1998. The Scrutiny Committee has found that the documents submitted by the first Respondent were manipulated and fabricated. The Respondent was appointed to a post reserved for the Scheduled Tribes on the basis of a caste certificate stating that he belongs to the Halba Scheduled Tribe. The termination of the services the Respondent has followed upon the cancellation of the caste certificate. In the circumstances and for the reasons contained in the body of the judgment, the High Court erred in allowing the writ peti....
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....It was directed that the seniority would be fixed after the final decision of this Court. On 15 September 2000 the Respondent was given a deemed date of 29 May 1987. On 15 April 2005, considering the judgment of this Court in Milind (supra), the appointment of the Respondent to the post of Assistant Executive Engineer was protected and he was regularized on the post considering it as an open category post. His seniority was directed to be fixed from the date of appointment and it was ordered that he shall not get the benefit of belonging to a Scheduled Tribe. On 6 August 2005 the earlier deemed date of 29 May 1987 was modified and his seniority on the post of Assistant Executive Engineer was fixed from 4 December 1995. On 5 June 2006 a G.R. was issued by which the deemed date was modified to 29 May 1987 on the post of Assistant Executive Engineer for the purpose of seniority. On 1 August 2009 a G.R. was issued by which the deemed date for the purpose of seniority on the post of Executive Engineer was set as 29 May 1991 subject to approval of the M.P.S.C. On 28 April 2014 the State Government published a seniority list from 1 January 2011 to 13 December 2013 for Executive Engineer. ....
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.... was appointed as an Assistant Teacher in a vacancy reserved for the Scheduled Tribes on 30 January 1999. The Caste Scrutiny Committee invalidated the claim of the Appellant on 1 July 2008. The Division Bench of the High Court, by its order dated 30 January 2009 allowed the request for the withdrawal of the writ petition filed by the Appellant keeping open the validity of the observations made by the Scrutiny Committee whereby prosecution was ordered. The services of the Appellant were terminated on 8 February 2009. The Appellant filed an appeal before the School Tribunal which was dismissed on 19 October 2011 on the ground that the appointment of the Appellant was not a valid appointment in the eye of law. The learned Single Judge dismissed the writ petition challenging the order of the Tribunal. A Letters Patent Appeal has been dismissed by the Division Bench by its judgment dated 7 May 2012. Having regard to the fact that the claim of the Appellant to belong to a Scheduled Tribe was invalidated by the Scrutiny Committee, the School Tribunal cannot be faulted in declining to entertain the appeal against the consequential order of termination of service. Moreover, for the reason....
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....was disposed of by the High Court, by its judgment and order dated 20 November 2013 with a direction that in case the Appellant is still in service as on that date, his employment shall not be terminated for a period of three months from the date of its order. For the reasons contained in the body of the present judgment, we find no error in the impugned judgment. The Civil Appeal is accordingly dismissed. No other submission is separately urged. There shall be no order as to costs. 20. Union of India and Ors. v. Suryakant and Ors. (Civil Appeal No. 8597/17 @ SLP (C) No. 16852 of 2016): The Director General, Vigilance, New Delhi by an order dated 1 July 2005, initiated the verification of tribe certificates of employees who were appointed from 1995. Accordingly, the original tribe certificate of the Respondent was asked to be produced. The Respondent was appointed on the post of Lower Division Clerk reserved for the Scheduled Tribes on the strength of a caste certificate stating that he belongs to the Mahadeo Koli tribe. The certificate was issued by the Tahsildar, Akola on 13 May 1985. Subsequently on enquiry about the authenticity of the tribe certificate, the Tahsildar, ....