TaxTMI 
TaxTMI 
2017 (7) TMI 1401
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....rising out of SLP (C) ... CC No. 10889/2015) 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 San....
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....ich the court is confronted involves individuals who 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....
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....il 6. On 24 February 1981, the Government of Maharashtra 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 Constitut....
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....ashtra, Entry 19 is: Halba, Halbi 10. In the State of Maharashtra, the ambit of Entry 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....
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.... identifying the needy and deserving people belonging to Scheduled Castes and Scheduled Tribes mentioned therein for the constitutional purpose 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 ha....
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....f claims and the consequences to ensue upon the invalidation of a claim. The legislation received the assent of the President and was published in the gazette 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 ....
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.... his children belong to such Castes, Tribes or Classes, the Scrutiny Committee may, suo motu, or otherwise call for the record and enquire into the correctness of such certificate and if it is 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 certific....
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....offences and penalties and provides thus: 11. (1) Whoever, - (a) obtains a false Caste Certificate by furnishing false information or filing false statement or documents or by any other fraudulent means; or (b) not being a person belonging to any of the Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category secures 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 rupee....
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....hildren to belong to a designated caste, tribe or class, the Scrutiny Committee is empowered to cancel it upon an opinion formed that it was obtained fraudulently. The fact that a person belongs to a designated caste, tribe or class is based on facts which are to 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 whic....
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....onsidered whether a person who has secured the benefit of public employment or admission to an educational institution on a reserved quota is entitled to retain the benefits obtained despite the invalidation of the claim to belong to the tribe or caste. In all such cases, 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 (su....
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....and since she had completed her course of study except to appear for the examination; she should be permitted to do so. The above directions were issued in the case of one of the two Appellants, Suchita Laxman Patil. However, her sister Madhuri (who was the first Appellant) was found 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....
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....a or the Rules framed thereunder. Where an appointment in a service has been acquired by practising fraud or deceit such an appointment is no appointment in law, in service and in such a situation Article 311 of the Constitution is not attracted at all. (ld. at p. 115) The Bench of three 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 ....
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..... Respondent No. 1-employee in the present case is a bank employee and the factor which weighed with this Court cannot be applied to him. (ld. at p. 698) The above observations of the court are also an indication that para 38 of the decision in Milind was construed as consisting of directions issued Under 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 whe....
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....d as such? 8. After thorough discussion of the matter the conclusions of the Bench are recorded in paragraph 36 of the report. It was held that it is not at all permissible to hold any enquiry or let in any evidence to decide or declare that any tribe or tribal community or part of or group within any tribe or tribal community is included in the general name even though it is not specifically mentioned in the concerned Entry in the Constitution (Scheduled Tribes) Order, 1950. It was further held that the notification issued Under Clause (1) of Article 342, specifying Scheduled Tribes, can be amended only by law to be made by Parliament and it is not open to the State Governments or courts or any other authority to modify, amend or alter the list of Scheduled Tribes specified in the notification issued Under Clause (1) of Article 342 and the Constitution (Scheduled Tribes) Order 1950. The law declared by the Constitution Bench does not at all lay down that where a person secures an appointment by producing a false caste certificate, his services can be protected on his giving an undertaking that in future he will not take any advantage of being a member of the reserved cate....
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.... the facts and circumstances of each case. This aspect of the matter has been considered recently by this Court in Sandeep Subhash Parate v. State of Maharashtra [(2006) 7 SCC 501 : (2006) 8 Scale 503]. (ld. at p. 487) Finally this Court held that the provisions of Maharashtra Act XXIII of 2001 must apply. Though at one point in time indulgence had been shown 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 Res....
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....r what has precedential value is the ratio decidendi of the decision and not the direction issued while moulding the relief in exercise of power Under Article 142 on the special facts and circumstances of a case. We are therefore of the view that Milind [(2001) 1 SCC 4 : 2001 SCC (L & S) 117] and Vishwanatha Pillai [(2004) 2 SCC 105 : 2004 SCC (L & S) 350] cannot be considered as 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 furth....
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....tment was not cancelled because of peculiar factual matrix obtaining therein, the consensus of judicial opinion is that equity, sympathy or generosity has no place where the original appointment rests on a false caste certificate. A person who enters the service by producing a false caste certificate and obtains appointment for the post meant for a Scheduled Caste or Scheduled Tribe or OBC, as the case may be, deprives a genuine 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 t....
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....was a Koshti. A similar protection has been granted in State of Maharashtra v. Om Raj (2007) 14 SCC 488 by a Bench of two Judges where admission, or as the case may be, appointment to a service was obtained on the basis of a claim to belong to the Halba Scheduled Tribe though the individuals concerned were found to be Koshti. The decision dealt with a batch of cases which were held to be covered by Milind. 28. The long tenure of an employee 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....
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....duled Tribe only with a view to obtain an undeserved benefit in the matter of appointment as a teacher. There is, therefore, no reason why the benefit of protection against ouster should not be extended to her subject to the usual condition that the Appellant shall not be ousted from service and shall be reinstated if already ousted, but she would not be entitled to any further benefit on the basis of the certificate which she has obtained and which was 10 years after its issue cancelled by the Scrutiny Committee. (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 ca....
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....tate of Maharashtra (2012) 8 SCC 430 : (2012) 2 SCC (L & S) 609] makes it clear that this protection is available by virtue of the decisions of this Court; it is not exclusively or necessarily predicated on any Resolution or Legislation of the State Legislature. (ld. at pgs. 533-534) The High Court in that case had while rejecting the claim of the Appellant relied upon the decision of three Judges in Dattatray (supra). However, this Court held that the decision in Dattatray 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 6....
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.... 10 applies in Dattatray [Union of India v. Dattatray (2008) 4 SCC 612 : (2008) 2 SCC (L & S) 6] mould only. (ld. at p. 536) The above extract indicates that this Court has in Shalini imported a requirement of dishonest intent, before the withdrawal of benefits mandated by Section 10 of the State legislation can take effect. Since there was no falsity in the claim of the Appellant, the Court held that Section 10 would not apply to her case. The Appellant was accordingly reinstated without 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, ....
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....nts of time, the fact that the position was not clear till the Amendment Act of 2007 made a clear distinction between the two, would entitle all those appointed to serve the State up to the date the amending Act came into force, to continue in service. (ld. at pgs. 453-453) 32. We may also at this stage advert to a judgment of two learned judges of this Court in B.H. Khawas v. Union of India (2016) 8 SCC 715. In that case, the Appellant was appointed as a Chemical Engineer Grade-I in the Customs and 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 Kos....
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....ough it had not become final. That would also mean that all caste certificates issued to persons belonging to Koshti community, as being Halba Scheduled Tribe in Maharashtra, prior to 28-11-2000 (the day on which Milind case [State of Maharashtra v. Milind (2001) 1 SCC 4 : 2001 SCC (L & S) 117] was decided by the Constitution Bench), have been validated irrespective of the opinion of the Scrutiny Committee qua those certificates. That cannot be countenanced. For caste Koshti is neither a synonym nor part of a 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 fi....
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.... if, ultimately, the Scrutiny Committee upon inquiring into the correctness of such certificate declares such certificate invalid and cancels the same, it is obvious that such Caste Certificate has been obtained by that person on the basis of the declaration or information or claim which was not correct or true and upon invalidation and cancellation of the Caste Certificate by the Scrutiny Committee, such person incurs disqualification automatically. There is no escape from it. (ld. at p. 438) Another Full Bench of the Bombay High Court 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 protec....
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....ecured or an appointment obtained prior to the coming into force of the enactment. Hence, the view of the High Court is that: 27....The consequences of discharge from employment or withdrawal of benefits secured or obtained by producing a false caste certificate shall not operate in respect of benefits or appointments obtained or secured prior to coming into force of the said Act. (ld. at p. 475) The Full Bench has taken the view that the observations of this Court in Shalini Gajananrao Dalal v. New English High School Association (2013) 16 SCC 526 impliedly overruled 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 fabric....
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....Maharashtra Act XXIII of 2001 are retrospective and would interdict admissions or appointments made prior to the enforcement of the Act. In any case such a stand would be contrary to the binding circulars issued by the State Government; and (iii) Maharashtra Act XXIII of 2001 is not retrospective in operation. The statute being of a penal nature, it cannot be construed to be retrospective since that would render it violative of Article 20(1) of the Constitution. The Act was notified on 17 October 2001 with effect from 18 October 2001 which is the relevant date Under Section 1 (2). (iv) While Section 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 ....
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....nvalidated, shall not be disbanded/terminated until further orders. In view of this circular, the State Government is estopped from challenging the Full Bench decision of the High Court in Arun Sonone. H. PART II: Analysis 38. Having put together the body of material on the subject, including the precedents and legislation governing the area, the stage for analysis is now reached. That is what this judgment now seeks to embark upon. 39. The backdrop for the decision in Madhuri Patil (supra) was provided by the significant scale on which benefits were secured by imposters by passing themselves off as members of castes, tribes and classes for whom reservations have 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: ....
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....esentation that the candidate belongs to a category of persons for whom the reservation is intended whereas in fact the candidate does not so belong. The reason for depriving the candidate of the benefit which she or he has obtained on the strength of such a claim, is that a person cannot retain the fruits of a false claim on the basis of which a scarce public resource is obtained. The same principle would apply where a candidate secures admission to an educational institution on the basis of a false claim to belong to a reserved category. A candidate who does so causes detriment to a genuine candidate who actually belongs to the reserved category who is deprived of the seat. For that matter a detriment 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 men....
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....n by this Court is that where an appointment to a post or admission to an educational institution is made against a vacancy which is reserved for a Scheduled Caste or Tribe or a socially and educationally backward class, the invalidation of the claim of the candidate would result in the appointment or, as the case may be, the admission being void and non est. This principle has been followed by another judgment of three Judges in Dattatray (supra). The same position has been propounded by a two judge bench in Bank of India v. Avinash Mandivikar (supra). The formal termination of an employment or the withdrawal of admission is a necessary consequence which flows out of the invalidation of the caste or tribe claim. The only exception 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....
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....e rationale which weighed with the Bench of two Judges which decided Kavita Solunke (supra) was that if the Halba Koshti had been treated as Halba even before the Appellant had joined the service and if the only ground for ouster was the law declared in Milind (supra), there was no reason why protection against ouster to appointees whose applications had become final be not also extended to the Appellant. Placing reliance on the decision in Kavita Solunke (supra) another Bench of two Judges of this Court in Shalini (supra) propounded a test of dishonest intent for the grant or denial of protection to persons whose caste claims had been invalidated. The view of the Court emerges from the following extract contained in para 9 of the decision 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 delib....
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....e, after enquiry, is of the opinion that the certificate was obtained fraudulently. These requirements have to be fulfilled before the certificate is cancelled. The falsity of the caste certificate and the opinion of the Scrutiny Committee of its being fraudulently obtained form the basis of a cancellation Under Section 7. Section 10 prescribes that a person who does not belong to a reserved category and secures admission or obtains appointment against a reserved post by producing a false caste certificate shall upon its cancellation by the Scrutiny Committee be debarred from the institution or as the case may be discharged from employment and the benefits derived shall be withdrawn. Sub-section (2) provided for the recovery of all financial benefits 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 ....
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....e belongs to such a caste, tribe or class lies with the claimant. The legislature has legitimately assumed that a person who seeks a caste certificate must surely be aware of the caste, tribe or class to which he or she belongs and must establish the claim. If the claim to belong to the reserved category is found to be untrue, the caste certificate has to be cancelled on the ground that it has been obtained falsely. The grant of the benefit to the candidate is fraudulent because the candidate has obtained a benefit reserved exclusively for a specified caste, tribe or class to which he or she is not entitled. The decision in Shalini (supra) would result in serious consequences and would eviscerate the statutory provision. The interpretation which 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 a....
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....nstitutional Limitations 8th Ed. Vol. 2 pages 1355-1358 places the matter succinctly in the following terms: An officer de jure is one who, possessing the legal qualifications, has been lawfully chosen to the office in question, and has fulfilled any conditions precedent to the performance of its duties. By being thus chosen and observing the precedent conditions, such a person becomes of right entitled to the possession and enjoyment of the office, and the public, in whose interest the office is created, is entitled of right to have him perform its duties. If he is excluded from it, the exclusion is both a public offence and a private injury. In a recent judgment of this Court in Anurag Kumar Singh v. State of Uttarakhand (2016) 9 SCC 426, it has been 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 Dis....
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....rt following the invalidation of a caste claim was in exercise of the power conferred by Article 142 of the Constitution, depending upon the facts and circumstances of each case. The jurisdiction Under Article 142 is clearly not available to the High Court in the exercise of its jurisdiction Under Article 226. The High Court erred in arrogating that jurisdiction to itself. 49. We do not find any merit in the submission which has been urged on behalf of the persons whose castes/tribes claims have been invalidated that Maharashtra Act XXIII of 2001 cannot apply to admissions or appointments which were made prior to the date on which the Act came into force. 50. The submission based on retrospectivity overlooks certain crucial links in the analysis. It is a cardinal principle of construction 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 becau....
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....and confiscation of a false caste certificate whether it was issued before or after the commencement of the Act. The expression "before or after the commencement of this Act" indicates that the Scrutiny Committee constituted Under Section 6 is empowered to cancel a caste certificate whether it was issued prior to 18 October 2001 or thereafter. Section 10 which provides for the withdrawal of benefits secured on the basis of a false caste certificate which is withdrawn is essentially a consequence of the cancellation of the caste certificate. Where a candidate has secured admission to an educational institution on the basis that he or she belongs to a designated reserved category and it is found upon investigation that the claim to belong to that category is false, admission to the institution necessarily falls with the invalidation of the caste certificate. Admission 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 differenc....
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....override constitutional or statutory norms. The principle that government is bound by its own circulars is well-settled but it cannot apply in a situation such as present. Protecting the services of a candidate who is found not to belong to the community or tribe for whom the reservation is intended substantially encroaches upon legal rights of genuine members of the reserved communities whose just entitlements are negated by the grant of a seat to an ineligible person. In such a situation where the rights of genuine members of reserved groups or communities are liable to be affected detrimentally, government circulars or resolutions cannot operate to their detriment. 54. One of the considerations which is placed in store before the court particularly when an admission to an educational institution is sought to be cancelled upon the invalidation of a caste or tribe claim is that the 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 ....
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....f. The exercise of jurisdiction in the manner suggested on behalf of the Appellants would surely depict the Court's support in favour of the sacrilegious. It would also compromise the integrity of the academic community. We are of the view that in the name of doing complete justice it is not possible for this Court to support the vitiated actions of the Appellants through which they gained admission to the MBBS course. Explaining the matter further, this Court held that: 99....Besides the consideration recorded by us in the foregoing paragraphs, we may confess, that we felt persuaded for taking the view that we have, for a very important reason -- national character. There is a saying--when wealth is lost, nothing is lost; when health is lost, something is lost; but when character is lost, everything is lost. ... The issue in hand has an infinitely vast dimension. If we were to keep 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 freed....
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.... (i) The directions which were issued by the Constitution Bench of this Court in paragraph 38 of the decision in Milind were in pursuance of the powers vested in this Court Under Article 142 of the Constitution; (ii) Since the decision of this Court in Madhuri Patil which was rendered on 2 September 1994, the regime which held the field in pursuance of those directions envisaged a detailed procedure for (a) the issuance of caste certificates; (b) scrutiny and verification of caste and tribe claims by Scrutiny Committees to be constituted by the State Government; (c) the procedure for the conduct of investigation into the authenticity of the claim; (d) Cancellation and confiscation of the caste certificate where the claim is found to be false or not genuine; (e) Withdrawal of benefits in terms of the termination of an appointment, cancellation of an admission to an educational institution or disqualification from an 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 th....
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....he offence has taken place after the date of its enforcement; (x) The judgment of the Full Bench of the Bombay High Court in Arun Sonone is manifestly erroneous and is overruled; and (xi) Though the power of the Supreme Court Under Article 142 of the Constitution is a constitutional power vested in the court for rendering complete justice and is a power which is couched in wide terms, the exercise of the jurisdiction must have due regard to legislative mandate, where a law such as Maharashtra Act XXIII of 2001 holds the field. 58. We will, now in the light of the reasons indicated above, proceed to dispose of the individual cases in the following terms: 1. Chairman and Managing Director FCI v. Jagdish Balaram Bahira C.A. No. 8928 of 2015: On 6 December 1984, Food Corporation of India offered appointment to the Respondent on the post of Messenger - Depot which was reserved for the Scheduled Tribes on the basis of a caste certificate dated 28 August 1978 issued by the Executive 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 ap....
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....r. v. Raju Laxman Gadekar and Ors. (Civil Appeal No. 9155 of 2015) and 3. State of Maharashtra v. Raju Laxman Gadekar & Ors. (Civil Appeal No. 9157 of 2015): In September 1981, Raju Laxman Gadekar obtained a caste certificate that he belonged to the Halba Scheduled Tribe in Maharashtra. On the strength of the caste certificate, he was appointed as an Assistant Teacher in a post reserved for a Scheduled Tribe in Shri Shivaji High-School, Dongaon on 24 June 1989. On 2 March 2005, he filled up an application in Form E and submitted an affidavit in Form F through his employer to the Scrutiny Committee, which was invalidated on 20 February 2008. Since the claim that he belonged to a Scheduled Tribe was invalidated, his services were terminated by the employer on 26 February 2008. The challenge to the order of termination failed before the School Tribunal. The writ petition challenging the order of the Scrutiny Committee was dismissed on 7 August 2009. The order of the School Tribunal was challenged in a separate Writ Petition 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 a....
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.... the Scrutiny Committee could decide her claim she approached the High Court in a writ petition seeking protection of service. The High Court disposed of the writ petition on 30 January 2013, on the statement of the employer that her services will not be terminated unless the caste certificate is invalidated by the Scrutiny Committee. She again filed a Writ Petition before the High Court seeking protection of her services. The Respondent has no right to claim protection of her services. The Respondent has misused the process of law by filing successive writ petitions to pre-empt an adjudication by the Scrutiny Committee and then confining the claim only to the protection of her services. For the reasons which are indicated in the body of the judgment and for the above reasons, the Civil Appeal is allowed and impugned judgment and order of the High Court is set aside. No other submission is urged. In the circumstances, there shall be no order as to costs. 5. State of Maharashtra and Anr. v. Mrs. Arundhati Suresh Ninawe and Anr. (Civil Appeal Nos. 9203-04 of 2015): The Respondent was appointed as a Lecturer on a post reserved for the Sched....
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....h of a caste certificate dated 14 January 1985 stating that he belongs to the Halba Schedule Tribe. The Scrutiny Committee by its order dated 30 August 2005 invalidated the caste claim of the Appellant. Subsequently the Respondent terminated the services of the Appellant in pursuance of the proviso to Sub Rule 1 of Rule 5 of the Central Services (Temporary Services) Rules, 1965. Being aggrieved, the Appellant filed a writ petition which was dismissed by the High Court by its order dated 3 August 2009. Having due regard for 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. 8. Rajendra S/o. Ramaji Mahisbadwe v. The Joint Commissioner and Vice-Chairman Scheduled Tribe, Caste Certificate Scrutiny Committee & Anr. (Civil Appeal No. 9154 of 2015): The Appellant was appointed as a trainee technician in Air India on a post reserved for the Scheduled Tribes on 6 August 1997 on the basis of a caste certificate dated 9 August 1988 stating that he belongs to the Halba Schedule Tribe. Thereafter the a....
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....ation Society Washim and Ors. (Civil Appeal Nos. 8604-05/17 @ SLP (C) Nos. 33864-65 of 2015): The Appellant was appointed as a Lecturer on a post reserved for the Scheduled Tribes on 14 August 1995 on the basis of a caste certificate dated 13 May 1982 stating that he belongs to the Halba Scheduled Tribe. The caste claim of the Appellant was invalidated by the Scrutiny Committee by its order dated 18 January 2005. Thereafter the Appellant was issued a show cause notice dated 3 January 2006 by the first Respondent to explain why his services should not be terminated. On 16 January 2006 the Appellant filed a writ petition and challenged the show cause notice. However, on the same day the first Respondent had already issued an order of termination. Thereafter the High Court granted permission to withdraw the writ petition and liberty was granted to file proceedings before the appropriate forum. The Appellant preferred an appeal before the University & College Tribunal, Nagpur which was dismissed by the tribunal by its order dated 30 December 2012. The High Court by its impugned judgment and order dated 18.3.2013 has declined to grant protection of services. The Review....
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....e review petition was also dismissed for want of prosecution on 5 April 2006. However, subsequently the review petition, after restoration, was allowed on 30 January 2015 and while the cancellation of the caste certificate was upheld protection to the services of the Respondent was granted. For the reasons contained in the body of the judgment and having due regard to the fact that the claim of the Respondent has been found to be false, we find merit in the appeals which have been filed by the Appellant. The impugned judgments of the High Court dated 30 January 2015 are accordingly set aside. The writ proceedings filed by the Respondent shall, in the circumstances, stand dismissed. The Civil Appeals are allowed in these terms. No other submission is urged. There shall be no order as to costs. 13. India Trade Promotion Organisation v. Vivek kumar Lajjashankar Chaurasiya (C.A. No. 8607/17 @ SLP (c) No. 14830 of 2015): The Scrutiny Committee by its order dated 30 March 2013 has found that the Respondent does not belong to the Nagawanshi tribe. The Respondent was appointed on a post reserved for the Scheduled Tribes on the strength of a certificate t....
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....urt on 4 July 1986. Thereafter the Respondent filed an appeal (Caste Appeal) 11/1986-87 before the Divisional Commissioner, Nagpur against the order of the Scrutiny Committee. The appeal was disposed of on 23 August 1985 by remanding the proceedings back to the Scrutiny Committee. On remand, the Scrutiny Committee, by its order dated 28 August 1989 found that the Respondent does not belong to the Scheduled Tribe and cancelled his caste certificate. The Respondent filed an appeal before the Additional Divisional Commissioner, Nagpur which was dismissed on 12 November 1990. The Respondent filed a writ petition challenging the invalidation of his caste claim and to seek relief in respect of his service conditions. By an order dated 23 March 1995 the writ petition was allowed by holding that the Respondent belongs to the Halba Koshti caste but that was made subject to the decision in Milind (supra). The Respondent was granted placement in the seniority of Assistant Engineer with effect from 29 July 1987, subject to the final outcome of the proceedings in Milind (supra). On 18 October 1995 the Respondent was appointed as Assistant Executive Engineer subject to the decision in M....
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....ear that the benefits obtained by the Respondent were subject to the decision in Milind. In Milind, this Court has held that Halba - Koshti is not a Scheduled Tribe, the relevant entry in the Scheduled Tribes Order 1950 being 'Halba, Halbi'. We accordingly allow the Civil Appeal and set aside the impugned judgment dated 27 February 2015. There shall be no order as to costs. 16. State of Maharashtra v. Ku. Vijaya Deorao Nandanwar and Anr. (C.A. No. 9107 of 2015): The claim of the Respondent of belonging to the Halba Scheduled Tribe has been invalidated by the Scrutiny Committee by its order dated 7 November 2009. The Respondent was appointed as an Assistant Teacher on a post reserved for the Scheduled Tribes. Following the invalidation of the claim, the services of the Respondent were terminated. The High Court by its impugned order dated 5 July 2013 set aside the order of termination and granted protection to the service of the Respondent. For the reasons contained in the body of the judgment, the impugned order of the High Court is unsustainable and is accordingly set aside. The writ petition filed by the Respondent shall, in th....
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.... the Appellant. The Appellant filed a Writ Petition before the High Court. By an order dated 30 June 2014, the High Court dismissed the petition. The Appellant filed another writ petition which was dismissed with costs by an order dated 19 September 2014. Subsequently on 19 November 2014 the first Respondent terminated the service of the Appellant. Being aggrieved, the Appellant filed another writ petition which was dismissed by the High Court by its order 19 January 2015. The above narration indicates a complete abuse of process by the Appellant. For the reasons contained in the body of the present judgment and in view of the above, we find no merit in the appeal. The Civil Appeal is accordingly dismissed. No other submission is separately urged. There shall be no order as to costs. 19. Pradip Gajanan Koli v. State of Maharashtra and Ors. (Civil Appeal No. 8598/17 @ SLP (C) 18925 of 2014): The Appellant was appointed to the post of Fireman in the reserved category for the Scheduled Tribes on 12 March 1996. Thereafter a caste certificate dated 22 June 2000 certifying that the Appellant belongs to the Mahadeo Koli Scheduled Tribe was issued. The c....
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.... The narration of facts reveals a complete misuse of process by the Respondent. For the reasons contained in the body of the judgment, the impugned order of the High Court is unsustainable and is accordingly set aside. The Civil Appeal is accordingly allowed in these terms. No separate submission is urged. There shall be no order as to costs. 21. Executive Director (Lubes), Indian Oil Corporation Ltd. v. Ashok Mahadeorao Pathrabe and Ors. (Civil Appeal Nos. 8599-8600/17 @ SLP (C) Nos. 29388-89 of 2016): The Respondent joined IOCL in 1976 at its R & D Centre, Faridabad. At the time of the appointment, the Respondent has shown himself as belonging to the Halba Scheduled Tribe. The appointment was subject to the information submitted by the Respondent being true and correct. The Respondent submitted his caste certificate along with a prescribed form/documents on 15 December 2006 which were forwarded for verification. The Scrutiny Committee rejected the caste claim of the Respondent on 4 October 2010. Being aggrieved, the Respondent preferred an internal appeal and also a writ petition before the High Court. By its order dated 1 March 2011 the Appellant r....