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CASE NO.: Appeal (civil)  347 of 2004

PETITIONER: Bank of India & Anr.                                             

RESPONDENT: Avinash D. Mandivikar & Ors.                             

DATE OF JUDGMENT: 14/09/2005

BENCH: ARIJIT PASAYAT & H.K. SEMA

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.  

       Appellants call in question legality of the judgment  rendered by a Division Bench of the Bombay High Court  holding that the respondent no.1 (hereinafter referred to as  the ’employee’) was to be reinstated in the post in which he  was appointed with continuity of service with back wages.   It was further held that he was not entitled to promotion as  he did not belong to Scheduled Tribe.       

       The background facts sans unnecessary details are as  follows:

       The respondent joined the services of the appellant  no.1-Bank on 15.10.1976 under the reserved category of  Scheduled Tribe. He was on probation for a period of six  months and thereafter his services came to be confirmed.  In  1984 he was promoted in the reserved category to the post of  Junior Management Scale I.  He was asked to submit fresh  caste certificate in the revised form as he was promoted in  the reserved category.  His caste certificate was referred  to the Committee For Scrutiny And Verification Of Tribe  Claims, Pune Division, Pune (in short the ’Scrutiny  Committee’) for verification on 13th June, 1987. The  Scrutiny Committee invalidated the caste certificate by  order dated 18th July, 1987.  The same was challenged  before the High Court in Writ Petition no.3680/1994.  The  matter was remanded to the Scrutiny Committee for fresh  hearing. Again by order dated 17th June, 1995 the Scrutiny  Committee invalidated the caste certificate.  The matter was  again remanded by the High Court by order dated 7th  August, 1996.  The Scrutiny Committee by order dated 24th  December, 1998 invalidated the caste certificate.  The said  order was challenged before the Bombay High Court by filing  writ petition which was withdrawn with liberty to file fresh  writ petition.  Another writ petition was filed which was  disposed of by order dated 12th April, 2001.  It was  prayed that enquiry proceedings were initiated by the  employer, and if any adverse decision is given by the  Enquiry Officer or his services are affected by any order  passed by the disciplinary authority on the basis of the  finding of the Enquiry Officer, liberty may be granted to  challenge the legality of the order of the Scrutiny  Committee and the disciplinary proceedings.  The prayer was  accepted and the writ petition was dismissed as withdrawn  granting opportunity as afore-noted.  The Enquiry Officer  submitted report holding that the charges were proved and

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the disciplinary authority after issuing show cause notice  terminated the services of respondent no.1-employee by order  dated 28th February, 2002. The said order of termination  was challenged before the Bombay High Court primarily on the  ground that the proceedings for verification of the caste  certificate were not initiated within reasonable period.   The High Court found substance in such plea.  It was noted  that though respondent no.1-employee joined the services of  the Bank in 1976, the reference was made in the year 1987.  It was held that the period was not reasonable for  initiation of proceedings.  The High Court accordingly held  that the proceedings were not initiated validly. Having held  so, it was further held that respondent no.1-employee does  not belong to Scheduled Tribe and, therefore, was not  entitled to promotion in the next higher rank.  Direction  was given to reinstate in the post he was appointed with  continuity of service with back wages.                  Learned counsel for the appellants submitted that the  view taken by the High Court is clearly erroneous.  The High  Court has not interfered with the invalidation order of the  Scrutiny Committee. The conclusions of the High Court are  contrary in terms. On one hand, it has been held that the  reference was not made within reasonable time.  On the other  hand, it has been held that respondent no.1 did not belong  to Scheduled Tribe.  This conclusion obviously is based on  the order of invalidation passed by the Scrutiny Committee.  When an action is founded on fraud the question of any  reasonable period for initiation of action is clearly  immaterial. By granting protection of the respondent no.1- employee the High Court has in essence nullified the object  for which scrutiny of the caste claim is made and the  purpose for which reservation has been made for Scheduled  Caste and the Scheduled Tribes.  

       Per contra, learned counsel for respondent no.1- employee submitted that the High Court has taken equitable  view. Reference was made to a decision of the Constitution  Bench of this Court in State of Maharashtra v. Milind and  Ors. (2001(1) SCC 4); more particularly para 38 thereof  which did not disturb the admissions which had become final  but it was held that in future no benefit in the status of  Scheduled Tribe was to be conferred.   

       In Kumari Madhuri Patil and Anr. v. Additional  Commissioner, Tribal Development and Ors. (1994 (6) SCC 241)  the object for granting certain benefits to persons  belonging to Scheduled Caste and Scheduled Tribe and the  approach to be adopted in matters where benefits are  fraudulently obtained was highlighted.  At para 13 of the  judgment it was, inter alia, noted as follows: "13. The admission wrongly gained or  appointment wrongly obtained on the basis of  false social status certificate necessarily  has 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 genuine candidates are also  denied admission to educational institutions  or appointments to office or posts under a  State for want of social status certificate.  The ineligible or spurious persons who  falsely gained entry resort to dilatory  tactics and create hurdles in completion of

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the inquiries by the Scrutiny Committee. It  is true that the applications for admission  to educational institutions are generally  made by a parent, since on that date many a  time the student may be a minor. It is the  parent or the guardian who may play fraud  claiming false status certificate. It is,  therefore, necessary that the certificates  issued are scrutinised at the earliest and  with utmost expedition and promptitude. For  that purpose, it is necessary to streamline  the procedure for the issuance of social  status certificates, their scrutiny and their  approval, which may be the following:  1. The application for grant of  social status certificate shall be  made to the Revenue Sub-Divisional  Officer and Deputy Collector or  Deputy Commissioner and the  certificate shall be issued by such  officer rather than at the Officer,  Taluk or Mandal level.  2. The parent, guardian or the  candidate, as the case may be, shall  file an affidavit duly sworn and  attested by a competent gazetted  officer or non-gazetted officer with  particulars of castes and sub-castes,  tribe, tribal community, parts or  groups of tribes or tribal  communities, the place from which he  originally hails from and other  particulars as may be prescribed by  the Directorate concerned.  3. Application for verification of  the caste certificate by the Scrutiny  Committee shall be filed at least six  months in advance before seeking  admission into educational  institution or an appointment to a  post.  4. All the State Governments shall  constitute a Committee of three  officers, namely, (I) an Additional  or Joint Secretary or any officer  higher in rank of the Director of the  department concerned, (II) the  Director, Social Welfare/Tribal  Welfare/Backward Class Welfare, as  the case may be, and (III) in the  case of Scheduled Castes another  officer who has intimate knowledge in  the verification and issuance of the  social status certificates. In the  case of the Scheduled Tribes, the  Research Officer who has intimate  knowledge in identifying the tribes,  tribal communities, parts of or  groups of tribes or tribal  communities.  5. Each Directorate should constitute  a vigilance cell consisting of Senior  Deputy Superintendent of Police in  over-all charge and such number of  Police Inspectors to investigate into

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the social status claims. The  Inspector would go to the local place  of residence and original place from  which the candidate hails and usually  resides or in case of migration to  the town or city, the place from  which he originally hailed from. The  vigilance officer should personally  verify and collect all the facts of  the social status claimed by the  candidate or the parent or guardian,  as the case may be. He should also  examine the school records, birth  registration, if any. He should also  examine the parent, guardian or the  candidate in relation to their caste  etc. or such other persons who have  knowledge of the social status of the  candidate and then submit a report to  the Directorate together with all  particulars as envisaged in the  proforma, in particular, of the  Scheduled Tribes relating to their  peculiar anthropological and  ethnological traits, deity, rituals,  customs, mode of marriage, death  ceremonies, method of burial of dead  bodies etc. by the castes or tribes  or tribal communities concerned etc.  6. The Director concerned, on receipt  of the report from the vigilance  officer if he found the claim for  social status to be "not genuine" or  ’doubtful’ or spurious or falsely or  wrongly claimed, the Director  concerned should issue show-cause  notice supplying a copy of the report  of the vigilance officer to the  candidate by a registered post with  acknowledgment due or through the head  of the educational institution  concerned in which the candidate is  studying or employed. The notice  should indicate that the  representation or reply, if any, would  be made within two weeks from the date  of the receipt of the notice and in no  case on request not more than 30 days  from the date of the receipt of the  notice. In case, the candidate seeks  for an opportunity of hearing and  claims an inquiry to be made in that  behalf, the Director on receipt of  such representation/reply shall  convene the committee and the  Joint/Additional Secretary as  Chairperson who shall give reasonable  opportunity to the  candidate/parent/guardian to adduce  all evidence in support of their  claim. A public notice by beat of drum  or any other convenient mode may be  published in the village or locality  and if any person or association  opposes such a claim, an opportunity

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to adduce evidence may be given to  him/it. After giving such opportunity  either in person or through counsel,  the Committee may make such inquiry as  it deems expedient and consider the  claims vis-a-vis the objections raised  by the candidate or opponent and pass  an appropriate order with brief  reasons in support thereof.  7. In case the report is in favour of  the candidate and found to be genuine  and true, no further action need be  taken except where the report or the  particulars given are procured or  found to be false or fraudulently  obtained and in the latter event the  same procedure as is envisaged in  para 6 be followed.  8. Notice contemplated in para 6  should be issued to the  parents/guardian also in case  candidate is minor to appear before  the Committee with all evidence in  his or their support of the claim for  the social status certificates.  9. The inquiry should be completed as  expeditiously as possible preferably  by day-to-day proceedings within such  period not exceeding two months. If  after inquiry, the Caste Scrutiny  Committee finds the claim to be false  or spurious, they should pass an  order cancelling the certificate  issued and confiscate the same. It  should communicate within one month  from the date of the conclusion of  the proceedings the result of enquiry  to the parent/guardian and the  applicant.  10. In case of any delay in  finalising the proceedings, and in  the meanwhile the last date for  admission into an educational  institution or appointment to an  officer post, is getting expired, the  candidate be admitted by the  Principal or such other authority  competent in that behalf or appointed  on the basis of the social status  certificate already issued or an  affidavit duly sworn by the parent/  guardian/candidate before the  competent officer or non-official and  such admission or appointment should  be only provisional, subject to the  result of the inquiry by the Scrutiny  Committee.  11. The order passed by the Committee  shall be final and conclusive only  subject to the proceedings under  Article 226 of the Constitution.  12. No suit or other proceedings  before any other authority should  lie.  13. The High Court would dispose of

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these cases as expeditiously as  possible within a period of three  months. In case, as per its procedure,  the writ petition/miscellaneous  petition/matter is disposed of by a  Single Judge, then no further appeal  would lie against that order to the  Division Bench but subject to special  leave under Article 136.  14. In case, the certificate obtained  or social status claimed is found to  be false, the parent/guardian/the  candidate should be prosecuted for  making false claim. If the  prosecution ends in a conviction and  sentence of the accused, it could be  regarded as an offence involving  moral turpitude, disqualification for  elective posts or offices under the  State or the Union or elections to  any local body, legislature or  Parliament.  15. As soon as the finding is  recorded by the Scrutiny Committee  holding that the certificate obtained  was false, on its cancellation and  confiscation simultaneously, it  should be communicated to the  educational institution concerned or  the appointing authority by  registered post with acknowledgment  due with a request to cancel the  admission or the appointment. The  Principal etc. of the educational  institution responsible for making  the admission or the appointing  authority, should cancel the  admission/appointment without any  further notice to the candidate and  debar the candidate from further  study or continue in office in a  post."          Respondent no.1-employee obtained appointment in the  service on the basis that he belonged to Scheduled Tribe.   When the clear finding of the Scrutiny Committee is that he  did not belong to Scheduled Tribe, the very foundation of  his appointment collapses and his appointment is no  appointment in the eyes of law. There is absolutely no  justification for his claim in respect of post he usurped,  as the same was meant for reserved candidate.  

       It was urged by learned counsel for the respondent  no.1-employee that there was no fraud practiced and it was,  in fact, under a bona fide belief that the claim was made  and there is no finding about any fraud having been  practiced by the employee.  The Scrutiny Committee examined  the various documents and came to a definite conclusion that  documents were manipulated to present false claim.   

       Stand of the respondent no.1-employee is to the effect  that he has put in nearly three decades of service and has  about three years to go before retirement, and in terms of  the High Court’s order he has been denied promotion.  Therefore, the order of the High Court is an equitable  order.

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        A similar plea about long years of service was  considered by this Court in R. Vishwanatha Pillai v. State  of Kerala and Ors. 2004(2) SCC 105) to be inconsequential.  In para 19 it was observed:

"It was then contended by Shri Ranjit Kumar,  learned Senior Counsel for the appellant that  since the appellant has rendered about 27  years of service, the order of dismissal be  substituted by an order of compulsory  retirement or removal from service to protect  the pensionary benefits of the appellant. We  do not find any substance in this submission  as well. The rights to salary, pension and  other service benefits are entirely statutory  in nature in public service. The 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 eye of the law. The right to salary or  pension after retirement flows 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 a  false caste certificate. A person who entered  the service by producing a false caste  certificate and obtained appointment for the  post meant for a Scheduled Caste, thus  depriving a genuine Scheduled Caste candidate  of appointment to that post, does not deserve  any sympathy or indulgence of this Court. A  person who seeks equity must come with clean  hands. He, who comes to the court with false  claims, cannot plead equity nor would the  court be justified to exercise equity  jurisdiction in his favour. A person who  seeks equity must act in a fair and equitable  manner. Equity jurisdiction cannot be  exercised in the case of a person who got the  appointment on the basis of a false caste  certificate by playing a fraud. No sympathy  and equitable consideration can come to his  rescue. We are of the view that equity or  compassion cannot be allowed to bend the arms  of law in a case where an individual acquired  a status by practising fraud."                      The protection under the Milind’s case (supra) cannot  be extended to the respondent no.1-employee as the  protection was given under the peculiar factual background  of that case. The employee concerned was a doctor and had  rendered long years of service. This Court noted that on a  doctor public money has been spent and, therefore, it will  not be desirable to deprive the society of a doctor’s  service. 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.   

       We find the conclusions of the High Court to be  contradictory. On one hand the High Court faulted the

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reference which was made after about ten years and on the  other hand accepted the findings of the Scrutiny Committee  that the respondent no.1 did not belong to Scheduled Tribe  as was held by the Scrutiny Committee. Mere delay in making  a reference does not invalidate the order of the Scrutiny  Committee.  If the High Court felt that the reference was  impermissible because of long passage of time, then that  would have made the reference vulnerable. By accepting the  findings of the Scrutiny Committee that the respondent no.1- employee did not belong to Scheduled Tribe, the observations  about the delayed reference loose  significance. The matter  can be looked into from another angle. When fraud is  perpetrated the parameters of consideration will be  different. Fraud and collusion vitiate even the most solemn  proceedings in any civilized system of jurisprudence. This  Court in Bhaurao Dagdu Paralkar v. State of Maharashtra and  Ors. (JT 2005 (7) SC 530) dealt with effect of fraud. It was  held as follows in the said judgment:

"14.    .............Fraud is proved when it is  shown that a false representation has been  made (i) knowingly, or (ii) without belief in  its truth, or (iii) recklessly, careless  whether it be true or false’.

15.     This aspect of the matter has been  considered by this Court in Roshan Deen v.  Preeti Lal (2002 (1) SCC 100) Ram Preeti  Yadav v. U.P. Board of High School and  Intermediate Education (2003 (8) SCC 311),  Ram Chandra Singh’s case (supra) and Ashok  Leyland Ltd. v. State of T.N. and Another  (2004 (3) SCC 1).

16.     Suppression of a material document would  also amount to a fraud on the court. (see  Gowrishankar v. Joshi Amba Shankar Family  Trust (1996 (3) SCC 310) and S.P.  Chengalvaraya Naidu’s case (supra). 17.     "Fraud" is a conduct either by letter  or words, which induces the other person or  authority to take a definite determinative  stand as a response to the conduct of the  former either by words or letter.  Although  negligence is not fraud but it can be  evidence on fraud; as observed in   Ram  Preeti Yadav’s case (supra). 18.     In Lazarus Estate Ltd. v. Beasley (1956)  1 QB 702, Lord Denning observed at pages 712  & 713, "No judgment of a Court, no order of  a Minister can be allowed to stand if it has  been obtained by fraud. Fraud unravels  everything."  In the same judgment Lord  Parker LJ observed that fraud vitiates all  transactions known to the law of however high  a degree of solemnity. (page 722) 19.     These aspects were recently highlighted  in the State of Andhra Pradesh and Anr. v. T.  Suryachandr Rao (2005 (5) SCALE 621)"

       Therefore, mere delayed reference when the foundation  for the same is alleged fraud does not in any way affect  legality of the reference.           Looked from any angle the High Court’s judgment holding

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that the respondent no.1-employee was to be reinstated in  the same post as originally held is clearly untenable.  The  order of termination does not suffer from any infirmity and  the High Court should not have interfered with it. By giving  protection for even a limited period, the result would be  that a person who has a legitimate claim shall be deprived  the benefits. On the other hand, a person who has obtained  it by illegitimate means would continue to enjoy it  notwithstanding the clear finding that he does not even have  a shadow of right even to be considered for appointment.    

       The appeal is allowed but without any order as to  costs.