REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5308   OF 2008 [Arising out of SLP (Civil) No. 7555 of 2008]

Raju Ramsing Vasave …Appellant

Versus

Mahesh Deorao Bhivapurkar & Ors. …Respondents

J U D G M E N T  

S.B. SINHA, J :

1. Leave granted.

2. Whether a co-employee of the respondent No. 1 who was working

as  a  Field  Officer  with  the  Maharashtra  Pollution  Control  Board  can

maintain  an  independent  special  leave  questioning  the  judgment  of  a

High Court setting aside an order of the Schedule Tribe Caste Certificate

Scrutiny Committee is the question involved herein.  

3. Before, however, we advert thereto, we may notice the admitted

factual matrix of the matter.   

Respondent  No.  1  claims  himself  to  be  a  member  of  Schedule

Tribe  being  belonging  to  “Halba”  tribe  notified  in  terms  of  the

Constitution (Scheduled Tribes) Order, 1950.  Respondent No. 1 and his

family  members  are  highly  educated.   The  caste  of  his  father  in  the

school records was shown as “Koshti” whereas the caste of his uncle was

also  shown  as  “Koshti”  which  was,  however,  later  on  corrected  as

“Halba”.   One  of  his  cousins  Ku.  Sandhya  Manohar  Bhivapurkar,

daughter  of  the  uncle  of  the  respondent  No.  1,  was  also  granted  a

certificate as belonging to the “Halba” community.   

4. An  intricate  question  as  to  whether  “Koshti”  is  a  sub-caste  of

“Halba” or “Halbi” came up for consideration before a Division Bench of

the Bombay High Court in Milind Sharad Katware and others v. State of

Maharashtra and others [1987 Mh. L.J. 572].  In the said judgment, the

Division  Bench inter  alia  referred  to  the  report  of  a  Joint  Committee

headed by Dr. A.K. Chandra which had been submitted to the Parliament

on 17.11.1969 to opine:

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“…It  does  appear  from  the  report  that representation  sent  to  the  Joint  Committee  by Halba  Koshti  Samaj  was  circulated  to  the members  and  that  the  Committee  had  visited Nagpur.   However,  it  does  not  appear  that either  evidence  is  taken  on the  matter  as  has been  done  in  the  cases  of  several representations about other Committees or that even without that a conclusion is reached that Halba – Koshti does not form part and parcel of Tribe “Halba’ Halbi”.  It is thus clear that the enquiries undertaken by several authorities and Courts  so  far  and  the  enquiry  which  we  are making now in these petitions do not amount to amending the list in any manner whatsoever.”

Various authorities and the purported custom of the Halba-Koshti

had also been taken into consideration by the court to hold:

“(1) It is permissible to enquire whether any sub-division of a Tribe – though not mentioned in the Act – is  a part  and parcel  of  the Tribe mentioned therein. (2) The  decisions  rendered  by  the  Courts from time to  time about  Halba  Koshtis  being part  and  parcel  of  “Halba/  Halbi”  tribe  are binding  on  the  government  and  authorities constituted by it. (3) The scope of enquiry in cases relating to students’ admissions before 8th March 1985 was limited  to  points  mentioned  in  the  circular dated 31st July 1981. (4) It  is  impermissible  to  take  inconsistent stand about a tribe in cases of near relatives. (5) Circulars  dated  31st July  1981  and  23rd September 1983 are valid.

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(6) ‘Halba Koshti’ is a sub-division of main tribe “Halba/ Halbi” as per entry No. 19 in the Act as applied to Maharashtra. (7) Every Koshti is not Halba Koshti.”

The  State  of  Maharashtra  came up  in  appeal  before  this  Court

thereagainst.  A limited order of stay was passed directing:

“There will be no order of stay of the judgment of the High Court but subject to the condition that Halba Koshtis will be entitled to admission to the seats  reserved for  Scheduled Tribes  on the basis of High Court judgment, provided the authorities granted admission are satisfied that they or  their  parents  had  income of  less  than Rs. 7200/- per annum.”

4. Indisputably,  however,  the  respondent  No.  1  also  filed  a  writ

petition claiming the said benefit which was marked as W.P. No. 1347 of

1988.   The  Division  Bench  of  the  Bombay High  Court  following  its

decision in Milind Sharad Katware (supra) allowed the said writ petition

by an order dated 11.08.1988 stating:

“1. This  petition  relates  to  the  caste  claim Halba.   Petitioner’s  father’s  real  elder  brother has been adjudicated as belonging to Scheduled Tribe.

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2. In the case of Milind Sharad Katware Vs. State of Maharashtra (1987 Mah. Law Journal 572),  we  have  taken  a  view  that  it  is impermissible  to  take  inconsistent  view between  the  cases  of  near  relatives  in  such matters.   Hence  the  impugned  orders  are quashed  and  set  aside.   The  petitioner  is declared to be belonging to Scheduled Tribe – Halba.”

5. It  is  of  some  significance  to  note  that  the  Government  of

Maharashtra  appointed  an  Expert  Committee  known  as  Ferriera

Committee.  It submitted its report in the year 1985.  In its report, the

Expert Committee stated:

“The  Halba/  Halbi  Tribe,  as  per  the Constitution  (Scheduled Tribes) Order, (1950) read with Part – IX of the second schedule to the Scheduled Castes, Scheduled Tribes Order (Amendment)  Act (1976) has been declared a scheduled Tribe in the State of Maharashtra and has appeared at Sr. No. 19 in the schedule.  The members of the caste known as Koshti/ Halba – Koshti,  residing  in  particular  in  the  Vidarbha areas, claim that they belong to the said Halba/ Halbi  tribe  and  are  entitled  to  obtain  caste certificates  as  belonging  to  the  Halba/  Halbi scheduled  Tribe.   Their  contention  is  that  the word “Koshti” is indicative of their traditional occupation,  namely,  weaving  and  it  is  not connected  with  the  caste.   Therefore,  they should  get  all  the  facilities  and  concessions extended to the Scheduled Tribes.  On the other hand,  the  Halba/  Halbi  tribals,  particularly  of the Bhandara and Gadchiroli districts and their

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tribal  representatives  in  the  Legislative Assembly,  Maharashtra,  represented  to  the Government  that  persons  belonging  to  the Halba/ Koshti/ Koshti caste from the Vidarbha region claim to belong to the Halba/ Halbi tribe in  order  to  secure  concessions  sanctioned  for the  scheduled  Tribes.   The  Halba  Koshtis/ Koshtis do not belong to the scheduled Tribes.”

Its conclusions were:

“9.1 The  expert  committee  appointed  by the Government  of  Maharashtra  to  examine  the Halba/  Halba  Koshti  problem  undertook  a careful  study  of  the  secondary  literature, initiated filed investigations and interviewed a number of Koshtis, a Halba Koshtis and Halba Tribals.   Consequently,  it  has  come  to  the conclusion  that  the  Koshtis  are  a  caste,  the Halba Koshtis a sub-caste of the Koshti  caste and the Halbas a Scheduled Tribe.  The Halba tribals  have  no  relations  of  identity  with  the Halba Koshti sub-caste of the Vidarbha Region, except for a partially common nomenclature.

9.2 More  specifically,  the  Committee  has come  to  the  conclusion  that  the  Koshtis  and Halba  Koshtis  are  not  characaterised  by primitive  traits,  a  relatively  distinct  culture, culture,  culturally  and  territorially  demarcated areas of habitation relative shyness of contact with the community at large and a high degree of  backwardness  whereas  the  Halba/  Halbi Scheduled Tribe is indeed so characterised.

*** *** *** 9.12 In brief, an examination of the secondary source from the year 1827 to the year 1985, a

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review of the field data and an evaluation of the information accruing from interviews makes it clear that the Halba Koshtis are a caste with a specific occupation or a sub-caste of the Koshti caste whose traditional occupation is weaving. In  the  census  records  the  Halbas  have  been classified as a tribe and the Koshtis as a caste. Furthermore, the facts overwhelmingly indicate that the Koshtis are concentrated in cities and towns like Nagpur, Bhandara Umred and so on, whereas the Halba tribals are largely located in the  hilly  and  forest  areas  of  Bhandara  and Gadchiroli districts.   Thus with the weight of evidence before it, the Expert Committee concludes that  there are no decisive social, ethnic, linguistic, religious and other  affinities  between the Halba Koshi  sub- caste of the Koshti caste, on the one hand and the Halba tribe in Maharashtra, on the other.”  

6. The  case  of  the  respondent  No.  1  was  referred  to  the  Schedule

Tribe Certificate Scrutiny Committee.  The Committee held:

“Thereafter the Scrutiny Committee decided to conduct  school  enquiry  of  the  case  and approached  the  primary  school  of  the candidate’s  father  i.e.  Mangalwari  Prathmik Shala, Umrer, District Nagpur.  In the enquiry with the school it  was revealed that the father of the candidate had studied in this school from 1946 to 1950 and his caste has been recorded as Koshti,  at  Sr. No. 3100.  This shows that  the caste of the candidate’s father was recorded as Koshti.  This is pretty old record pertaining to period prior to the passing of the Constitution

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Scheduled  Tribe  Order  1950  and  obviously carries  more  evidential  value  than  any  other subsequent  evidence  because  there  was  no provocation at that time for noting wrong caste claims.  Thus, from an important documentary evidence it has been established that the caste of the candidate’s father is Koshti.  The caste of the father determines the caste of his progency in Hindu society.  When it has proved that caste of the candidate’s father is Koshti, the caste of the  candidate  is  bound  to  be  Koshti  and  he cannot  claim  to  be  belonging  to  Halba, Scheduled Tribe.”

The Committee considered all the documents including the school

registers.  It went into the question as to whether the respondent No. 1

followed the traits of the members of the Scheduled Tribe to hold:

“After considering all the aforesaid documents and in exercise of the powers vested in it, the Scrutiny Committee has come to the conclusion that Shri Mahesh Deorao Bhivapurkar does not belong to Halba Scheduled Tribe and as such his claim towards the same is held invalid.  He belongs  to  Koshti  caste  which  comes  under other Backward Classes and as such the caste certificate of his belonging to Halba, Scheduled Tribe  granted  by  the  Executive  Magistrate, Nagpur  vide  NO.  235/MEC-81/87-88  dated 18.8.1987 is hereby cancelled.”

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7. The  matter  was  thereafter  referred  to  the  Caste  Scrutiny

Committee.  However, relying on or on the basis of the decision of the

High Court  dated  11.08.1988  in  Writ  Petition  No.  1347  of  1988,  the

Scheduled  Tribe  Caste  Scrutiny  Committee,  Pune  refused  to  grant  a

certificate in his favour by an order dated 18.09.1997, stating:

“Your  claim  towards  Halba  has  been adjudicated  by  Scrutiny  Committee  on 24.1.1988 and held invalid against this decision you have filed Writ Petition No. 1347 of 1988 and  the  same  is  allowed  by  High  Court  on 11.8.1988.   The Hon’ble  High Court  quashed and  set  aside  the  order  of  Director,  Tribunal Research  and  Training  Institute,  Pune  by referring  the  similar  case  of  Milind  Sharad Katware Vs. State of Maharashtra.  As per the S.C. Interim order the benefit of ST is available for  the  candidates  for  the  education  purpose only.  Therefore, there is no question to grant validity only on the basis of limited orders.”

The said order appears to have been passed on a wrong premise

that this Court in the case of Milind Sharad Katware (supra) had passed

an  interim  order.   Although  the  said  order  was  passed  on  a  wrong

premise.  Its validity was not questioned.   

8. In  Milind Sharad Katware (supra), this Court by a judgment and

order dated 28.11.2000 (hereinafter referred to as “Milind”) held:

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“1. It is not at all permissible to hold any inquiry  or  let  in  any  evidence  to  decide  or declare  that  any  tribe  or  tribal  community  or part  of  or  group  within  any  tribe  or  tribal community  is  included  in  the  general  name even though it is not specifically mentioned in the  entry  concerned  in  the  Constitution (Scheduled Tribes) Order, 1950.

2. The Scheduled Tribes Order must be read as it is. It is not even permissible to say that a tribe, sub-tribe, part of or group of any tribe or tribal  community  is  synonymous  to  the  one mentioned  in  the  Scheduled  Tribes  Order  if they are not so specifically mentioned in it.  

3. A notification issued under clause (1) of Article  342,  specifying  Scheduled  Tribes,  can be  amended  only  by  law  to  be  made  by Parliament.  In other  words,  any tribe or tribal community or part of or group within any tribe can  be  included  or  excluded  from the  list  of Scheduled  Tribes  issued  under  clause  (1)  of Article 342 only by Parliament by law and by no other authority.”  

However, it was directed:

“38. Respondent 1 joined the medical course for  the  year  1985-86.  Almost  15  years  have passed  by  now.  We  are  told  he  has  already completed  the  course  and  may  be  he  is practising as a doctor. In this view and at this length of time it is for nobody’s benefit to annul

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his  admission.  Huge amount  is  spent  on each candidate for completion of medical course. No doubt,  one  Scheduled  Tribe  candidate  was deprived  of  joining  medical  course  by  the admission given to Respondent 1. If any action is  taken against  Respondent  1, it  may lead to depriving the service of a doctor to the society on whom public money has already been spent. In these circumstances, this judgment shall not affect  the  degree  obtained  by  him  and  his practising as a doctor. But we make it clear that he  cannot  claim  to  belong  to  the  Scheduled Tribe covered by the Scheduled Tribes Order. In other words, he cannot take advantage of the Scheduled Tribes Order any further or for any other constitutional  purpose. Having regard to the passage of time, in the given circumstances, including interim orders passed by this Court in SLP (C) No. 16372 of 1985 and other related matters,  we make it  clear  that  the  admissions and appointments that have become final, shall remain unaffected by this judgment.”  

9. Appellant and the respondent No. 1 together with two others were

appointed as Field Officers.  Whereas the respondent No. 1 was placed at

Sl.  No.  69  of  the  Select  List,  the  appellant  was  placed at  Sl.  No.  73

thereof.  As against the names of the S.T. candidates, however, it  was

stated:

“Services of these candidates will be continued subject to “Validity Certificate”

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10. However, we may notice that an application in the disposed of writ

petition bearing No. 1347 of 1988 was filed by the respondent No. 1 in

2006; the prayers made wherein read as under:

“i) this Hon’ble High Court may be pleased to issue appropriate direction to the respondent No. 3 to issue caste validity certificate pursuant to  the  judgment  dated  11.8.1988  in  Writ Petition  No.  1347  of  1988  in  the  interest  of justice; ii) direct  the  respondent  No.  4  to  consider the  petitioner  as  backward  class  candidate belonging  to  Halba  Scheduled  Tribe,  as  per declaration  of  the  Hon’ble  High court  as  and when promotion to the candidates of Scheduled Tribe category is ordered/ effected, till the point of time of issue of caste validity certificate by the  Caste  Certificate  Scrutiny  Committee  i.e. respondent  No.  3  as  he is  topping  the  list  of Scheduled Tribe employee in the cadre of Field Officer as per circular letter dated 3.12.2002.”

11. It is of some significance to notice that in the original writ petition,

the employer was not a party.  In the interlocutory application, however,

it was impleaded as a party.  

12. Before we advert to the impugned judgment of the High Court, we

may  notice  that  the  Maharashtra  Pollution  Control  Board  issued  a

circular on or about 14.12.2004 directing:

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“As  per  aforementioned  referred  letter,  it  is communicated  to  you  about  submission  of Scheduled  Tribe  Officer/  Employee  Caste Validity  Certificate.   And  those  officers/ employees  who  are  not  having  caste  validity certificate  their  record  pertaining  to  Caste Certificate  is  to  be  sent  to  verification committee.  But the office heads has not looked into  the  matter  specifically  and  acted accordingly.   You  are  communicated  once again  vide  this  letter  that  those  officer/ employee  in  your  office  which  are  ST  there caste  validity certificate  is  to  be submitted  to establishment branch without  fail or regarding his  submission  and  validity  certificate  the report  of  action  taken  at  your  level  is  to  be communicated immediately.

Thereafter  officer/  employee  (Backward class)  Scheduled  Caste,  Scheduled  Tribe, Vimukta Jati, Nomadic Tribe, Other Backward Special Backward etc. in the cadre such officer/ employee  are  required  to  submit  their  caste validity certificate to this office immediately.   

The  officer/  employee  who  has  not submitted  validity  certificate  or  not  having validity  certificate  is  required  to  submit  the record  through  office  to  the  caste  scrutiny committee and the report of the same should be furnished so that all the backward class officer/ employee’s validity certificate can be attached to their service book.

In  this  matter  all  office  head,  HQ controlling  officer  are  hereby  informed  that they have  to  look  into  the  matter  specifically and take action so early and submit the report to this office immediately.

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Backward  Class  officer/  employees cannot be considered for the promotion without submission of validity certificate.   This has to be  brought  to  the  notice  of  respective candidates.”

By reason of the impugned judgment, the High Court held:

(i) It was not necessary to implead the Maharashtra State Pollution

Control Board as a party in the application.

(ii) The  order  dated  11.08.1988  passed  in  the  Writ  Petition  No.

1347 of 1988 attained finality whereby the respondent  No. 1

had  been  declared  to  be  belonging  to  the  Schedule  Tribe

“Halba”.

(iii) The decision of the Caste Scrutiny Committee declining grant

of  certificate  relying  on  or  on  the  basis  of  the  order  dated

14.07.1986 passed by this Court was wrongly interpreted and it

committed an error in refusing to grant such a certificate.

It was directed:

“Hence, the application is allowed in said terms and  production  of  caste  certificate  dated 13.8.1987 by the applicant with respondent No. 4  –  employer  would  be  sufficient  compliance

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with the Circular issued by respondent No. 4 in order to hold that the applicant belongs to the Scheduled  Tribe  –  Halba  by  virtue  of  the verdict of this Court in Writ Petition No. 1347 of 1988 decided on 11.8.1988.”

13. Mr. Gaurav Agarwal, learned counsel appearing on behalf of the

appellant, would urge that although this special leave petition is not in

the nature of a public interest litigation as such, but keeping in view of

the  fact  that  the  judgment  of  the  High  Court  is  wholly  without

jurisdiction being contrary to the decision of this Court in Milind as well

as  a  large  number  of  decisions  following  the  same,  the  impugned

judgment cannot be sustained.

14. Mr. A.V. Savant, learned senior counsel appearing on behalf of the

respondents,  on  the  other  hand,  would  contend  that  the  claim of  the

respondent No. 1 had never been advanced on the basis that he belongs

to Koshti,  a  sub-caste of Halba tribe but all  along the same had been

advanced on the basis that he belongs to the said tribe.    

Contending that the Division Bench of the Bombay High Court in

its  judgment  dated  11.08.1988  having  held  that  the  respondent  No.  1

should be declared to be belonging to “Halba” tribe on the premise that

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his  other  relatives  had  been  declared  as  such,  no  exception  to  the

impugned judgment can be taken and for the aforementioned purpose,

the caste certificates granted to the father of the respondent No. 1, his

uncle and the cousin could be relied upon.

The  learned  counsel  would  urge  that  it  would  be  incorrect  to

contend that this Court in Milind had overturned the decision of the High

Court that the test of scrutiny as regards the traits of a member of the

Scheduled Tribe should not be on the premise that his other near relatives

had been granted the certificates.  In support of the said contention, our

attention has been drawn to the following questions framed by this Court

in Milind :

“(1) Whether at all, it is permissible to hold inquiry and let in evidence to decide or declare that any tribe or tribal community or part of or group within any tribe or  tribal  community is included in the general name even though it is not  specifically  mentioned  in  the  entry concerned  in  the  Constitution  (Scheduled Tribes) Order, 1950?

(2) Whether “Halba-Koshti” caste is a sub- tribe  within  the  meaning  of  Entry  19 (Halba/Halbi)  of  the  said  Scheduled  Tribes Order relating to the State of Maharashtra, even though  it  is  not  specifically  mentioned  as such?”

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So far as the question No. 2 is concerned, it has been held that “it

is not even permissible to say that a tribe, sub-tribe, part of or group of

any tribe or tribal community is synonymous to the one mentioned in the

Scheduled Tribes Order if they are not so specifically mentioned in it”.

15. Article 342 of the Constitution of India reads as under:

“342. Scheduled Tribes

(1) The President may with respect to any State or Union territory, and where it is a State after consultation  with  the  Governor  thereof,  by public notification5  specify the tribes or tribal communities or parts of or groups within tribes or  tribal  communities  which  shall  for  the purposes of this Constitution be deemed to be Scheduled  Tribes  in  relation  to  that  State  or Union territory, as the case may be.

(2)  Parliament  may  by  law  include  in  or exclude  from  the  list  of  Scheduled  Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said  clause  shall  not  be  varied  by  any subsequent notification.”

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16. In terms of the said provision, the Constitution (Scheduled Tribes)

Order, 1950 was issued.  The tribe “Halba” finds place in the said order.

“Koshti”,  however,  in  the  State  of  Maharashtra  comes  under  ‘special

backward class’.  Their occupation may be the same but it is well-settled

that before a person can obtain a declaration that he is a member of a

scheduled tribe, he must be a member of a tribe.  [See Nityanand Sharma

v. State of Bihar (1996) 3 SCC 576]   

The  Parliament,  it  is  trite,  alone  can  amend  the  law  and  the

schedule for the purpose of including or excluding therefrom a tribe or

tribal community or part of or group within the same in the State, district

or region and the declaration made by the Parliament is conclusive.  For

the said purpose, the court does not have any jurisdiction so as to enable

it to substitute any caste and tribe.

17. It is not correct to contend that the Bombay High Court in Milind

Sharad  Katware (supra)  was  not  concerned  with  the  question  as  to

whether  Halba  –  Koshti  is  a  sub-tribe  of  Halba  or  Halbi.   It  in  fact

considered the said question in great depth.  It referred to a large number

of judgments.  The doctrine of stare decisis was applied.   

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18. Milind was  applied  in  a  large  number  of  cases.   Some of  the

judgments  had  been  accepted  by  the  Government.   It  is  in  the

aforementioned backdrop, this Court in Milind opined:

“31. The High Court applied the doctrine of  stare  decisis  on  the  grounds  that  the decisions  referred  to  above  were  considered judgments;  even  the  Government  accepted their  correctness  in  the  courts;  the  State Government  independently  took  the  same view after repeated deliberations for a number of years; taking a contrary view would lead to chaos, absurd contradictions resulting in great public mischief. In our view, the High Court was again wrong in this regard. The learned Senior Counsel for Respondent 1 was not in a position to support this reasoning of the High Court  and rightly so in our opinion.  Among the decisions listed above except the first two decisions,  all  other  decisions  were  rendered subsequent  to  two  Constitution  Bench judgments (supra) of this Court. The first two judgments were delivered in 1956 and 1957. In this view, the High Court was not right in stating  that  the  decisions  were  rendered during  a  long  span  of  over  34  years  by different  Benches  of  different  High  Courts, consistently  holding  that  “Halba-Koshti”  is “Halba”.  The  rule  of  stare  decisis  is  not inflexible  so  as  to  preclude  a  departure therefrom  in  any  case  but  its  application depends  on  facts  and circumstances  of  each case. It is good to proceed from precedent to precedent  but  it  is  earlier  the  better  to  give quietus to the incorrect one by annulling it to avoid  repetition  or  perpetuation  of  injustice, hardship and anything ex facie  illegal,  more

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particularly when a precedent runs counter to the  provisions  of  the  Constitution.  The  first two decisions  were rendered without  having the benefit of the decisions of this Court, that too  concerning  the  interpretation  of  the provisions of the Constitution...”

It was categorically held that  the High Court  was not  correct  in

invoking and applying the doctrine of stare decisis.

19. Furthermore, the Bombay High Court proceeded on the basis that

the “Halba-Koshtis” were treated in the region of Vidarbha as “Halbas”.

This  Court  noticed  that  the  State  of  Maharashtra  had  issued  a  large

number of circulars pointing out that a large number of persons who did

not belong to Scheduled Tribe are taking benefit thereof.  It was in the

aforementioned premise, this Court opined that the opinion of the Caste

Scrutiny Committee which was constituted in terms of the decision of

this Court in Kumari Madhuri Patil and Another v. Addl. Commissioner,

Tribal Development and Others  [(1994) 6 SCC 241] had received the

statutory recognition by the State, stating:

“…The State Government issued resolution dated  29-10-1980  in  consonance  with  the instructions  given by the Central  Government laying  down  the  guidelines  on  which  the

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inquiry should be held before issue of the caste certificate. Another resolution dated 24.2.1981 was  also  issued  for  appointing  a  Scrutiny Committee  to  verify  whether  the  caste certificate has been issued to a person who is really entitled to it in view of the complaints of misuse  of  reservational  benefits  on  a  large scale. These resolutions were operative as they had  not  been  repealed.  This  Court  in  its judgment  dated  19-10-1984  State  of Maharashtra v. Abhay directed that the State of Maharashtra  should  devise  and  frame a  more rational method for obtaining much in advance a certificate on the strength of which a reserved seat is claimed. But the High Court committed an error in interpreting the scope of the circular dated  31-7-1981  that  the  School  Leaving Certificate  was  conclusive  of  the  caste.  This interpretation was plainly inconsistent with the instructions  and  resolutions  stated  above. Further,  it  may be  also  noticed  here  that  the Joint  Parliamentary  Committee  did  not  make any recommendation to include “Halba-Koshti” in the Scheduled Tribes Order. At any rate the Scheduled  Tribes  Order  must  be  read  as  it  is until it is amended under clause (2) of Article 342.  In  this  view  also,  the circulars/resolutions/instructions  will  not  help Respondent 1 in any way. Even otherwise,  as already  stated  above,  on  facts  found  and established  the  authorities  have  rejected  the claim  of  Respondent  1  as  to  the  caste certificate. The power of the High Court under Article 227 of the Constitution of India, while exercising the power of judicial review against an order of inferior Tribunal being supervisory and  not  appellate,  the  High  Court  would  be justified  in  interfering  with  the  conclusion  of the Tribunal, only when it records a finding that the inferior Tribunal’s conclusion is based upon exclusion  of  some  admissible  evidence  or consideration of some inadmissible evidence or

2 1

the inferior Tribunal has no jurisdiction at all or that  the  finding  is  such,  which  no  reasonable man could arrive at, on the materials on record. The  jurisdiction  of  the  High  Court  would  be much  more  restricted  while  dealing  with  the question  whether  a  particular  caste  or  tribe would come within the purview of the notified Presidential Order, considering the language of Articles 341 and 342 of the Constitution. These being the parameters  and in the case in hand, the Committee conducting the inquiry as well as the Appellate Authority, having examined all relevant  materials  and  having  recorded  a finding that Respondent 1 belonged to “Koshti” caste  and  has  no  identity  with  “Halba/Halbi” which is the Scheduled Tribe under Entry 19 of the Presidential  Order,  relating to the State of Maharashtra,  the  High  Court  exceeded  its supervisory jurisdiction by making a roving and in-depth  examination  of  the  materials  afresh and in coming to the conclusion that “Koshtis” could be treated as “Halbas”. In this view the High Court could not upset the finding of fact in  exercise  of  its  writ  jurisdiction.  Hence,  we have to  essentially answer  Question  2 also  in the  negative.  Hence  it  is  answered accordingly.”  

It was furthermore noticed that even the Central Government had

issued several  circulars  which had been ignored by the High Court  in

arriving at the said decision.   

20. One  of  the  questions  which  has  been  raised  before  us  is  as  to

whether the offer of appointment made in favour of the respondent No. 1

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by the Maharashtra Pollution Control Board dated 16.03.1998 is final so

as to attract the direction contained in paragraph 38 of Milind (supra).   

Where factual foundation arrived at by a committee authorised in

this  behalf  concludes  that  a person is  not  a member of  the Scheduled

Tribe  would remain operative unless set aside by a superior court.  The

judgment  of  the  High  Court  in  favour  of  the  respondent  No.  1  was

rendered on a wrong premise.  The claim of the respondents may be that

he belonged to the Halba tribe but, therefor, no factual foundation was

placed before the High Court.  The High Court relied solely on its earlier

decision  to  hold  that  Koshti  would  come  within  the  purview  of  the

Scheduled Tribe of Halba or Halbi.  The decision was rendered in 1988.

The records maintained by the school where the respondent studied were

not  placed  before  the  High  Court.   Only  when  the  Caste  Scrutiny

Committee, a statutory committee, proceeded to enquire into the matter,

the truth came out.   

We  do  not  mean  to  suggest  that  an  opinion  formed  by  the

Committee as regards the caste of the near relative of the applicant would

be wholly irrelevant, but, at the same time, it must be pointed out that

only because, by mistake or otherwise, a member of his family had been

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declared to be belonging to a member of the Scheduled Tribe, the same

by  itself  would  not  be  conclusive  in  nature  so  as  to  bind  another

Committee while examining the case of other members of the family at

some details.  If it is found that in granting a certificate in favour of a

member of a family, vital evidences had been ignored, it would be open

to the Committee to arrive at a different finding.

21. We reiterate that to fulfill the constitutional norms, a person must

belong to  a  tribe before  he  can  stake  his  claim to  be a  member of  a

notified Scheduled Tribe.  When an advantage is obtained by a person in

violation  of  the  constitutional  scheme,  a  constitutional  fraud  is

committed.   

22. Contention  of  Mr.  Savant  must  be  tested  on  the  premise  as  to

whether the principle of res judicata applies in a case of this nature.   

Principle of res judicata is undoubtedly a salutary principle.  Even

a wrong decision would attract the principle of res judicata.  The said

principle, however, amongst others,  has some exceptions,  e.g., when a

judgment is passed without jurisdiction, when the matter involves a pure

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question of law or when the judgment has been obtained by committing

fraud on the court.

In  Williams v.  Lourdusamy and  Anr. [(2008)  5  SCC 647],  this

Court stated the law, thus:

“11.  The  principles  of  res-judicata  although provide for a salutary principle that no person shall be harassed again and again, have its own limitations.  In  O.S.  No.  402  of  1987,  the respondent No. 2 was not impleaded as a party. In his absence therefore, the issue as to whether respondent  No.  2  had  entered  into  an  oral agreement of sale or not  could not  have been adjudicated  upon.  The  said  Court  had  no jurisdiction in that behalf. If that was decided in the  said  suit,  the  findings  would  have  been nullities.”

23. Two legal principles which would govern a case of this nature, are:

(i) A decision  rendered  without  jurisdiction  being  a  nullity,  the

principle of res judicata shall not apply.

(ii) If  a  fraud  has  been  committed  on  the  court,  no  benefit

therefrom can be claimed on the basis of thereof or otherwise.

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24. In support of the first principle, we may at the outset refer to Chief

Justice of Andhra Pradesh and Others v. L.V.A. Dixitulu [(1979) 2 SCC

34] wherein this Court, while discussing the effect of Section 11 of the

CPC on a pure question of law or a decision given by a court without

jurisdiction, opined:

"Moreover,  this  is  a  pure  question  of  law depending  upon  the  interpretation  of  Article 371D. If the argument holds good, it will make the  decision  of  the  Tribunal  as  having  been given  by an  authority  suffering  from inherent lack of jurisdiction. Such a decision cannot be sustained merely by the doctrine of res judicata or estoppel as urged in this case."

A Three – Judge Bench of this  Court  in  Ashok Leyland Ltd. v.

State of Tamil Nadu and Anr. [(2004)3SCC1], held:

“120.  The  principle  of  res  judicata  is  a procedural provision. A jurisdictional question if  wrongly  decided  would  not  attract  the principle  of  res  judicata.  When  an  order  is passed without jurisdiction, the same becomes a nullity. When an order is a nullity, it cannot be supported by invoking the procedural principles like, estoppel, waiver or res judicata.”

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 [See also  Dwarka Prasad Agarwal (D) By LRs. and Anr. v.  B.D.

Agarwal and Ors.   ( 2003 ) 6 SCC 230,  Union of India v. Pramod Gupta

(2005) 12 SCC 1 and National Institute of Technology and Ors. v. Niraj

Kumar Singh (2007) 2 SCC 481]

25. So far as the second principle, noticed by us, is concerned, there is

no dearth of authority.

Fraud vitiates all solemn acts.  When an order has been obtained

by practising fraud on the court, it would be a nullity.

In  Ganpatbhai  Mahijibhai  Solanki v.  State  of  Gujarat  and  Ors.

[(2008) 3 SCC 556], this Court held:

“It  is  now a  well  settled  principle  that  fraud vitiates all solemn acts. If an order is obtained by  reason  of  commission  of  fraud,  even  the principles of natural justice are not required to be complied with for setting aside the same.”  

It was further observed:

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“In T. Vijendradas and Anr. v. M. Subramanian and Ors., this Court held;

21. ...When a fraud is practiced on a court, the same is rendered a nullity. In a case of nullity, even  the  principles  of  natural  justice  are  not required  to  be  complied  with.  [Kendriya Vidyalaya Sangathan and Ors. v. Ajay Kumar Das  and  Ors. &  A.  Umarani  v.  Registrar, Cooperative societies and Ors.]

22.  Once  it  is  held  that  by  reason  of commission of a fraud, a decree is rendered to be  void  rendering  all  subsequent  proceedings taken  pursuant  thereto  also  nullity,  in  our opinion,  it  would  be  wholly  inequitable  to confer a benefit on a party, who is a beneficiary thereunder....”

In  K.D. Sharma v.  Steel  Authority of India Ltd.  and Ors. [2008

(10) SCALE 227], this Court opined:

“16.  Reference  was  also  made  to  a  recent decision of this Court in  A.V. Papayya Sastry and  Ors.  v.  Govt.  of  A.P.  and  Ors.  (2007)  4 SCC  221.  Considering  English  and  Indian cases, one of us (C.K. Thakker, J.) stated:

It  is  thus  settled  proposition  of  law  that  a judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non est  in the eye of  law. Such a judgment, decree or order --by the first Court or by the final Court-- has to be treated as nullity by every Court,  superior or inferior.  It can be

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challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings.

17.  The  Court  defined  fraud  as  an  act  of deliberate deception with the design of securing something  by  taking  unfair  advantage  of another. In fraud one gains at the loss and cost of another. Even the most solemn proceedings stand  vitiated  if  they  are  actuated  by  fraud. Fraud is thus an extrinsic collateral  act  which vitiates  all  judicial  acts,  whether in  rem or in personam.”

26. The  order  dated  11.08.1988,  thus,  would  not  operate  as  a  res

judicata so as to disable it from considering the merit of the case of the

respondent No. 1 by the State of Maharashtra or Maharashtra Pollution

Control  Board  afresh.   The  decision  of  the  High  Court  ex  facie  is

unsustainable.

27. We may at this juncture notice some decisions of this Court where

the question at hand has been discussed.

In  State of Maharashtra and Others v.  Ravi Prakash Babulalsing

Parmar and Another [(2007) 1 SCC 80], this Court held:

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“23. The  makers  of  the  Constitution  laid emphasis  on  equality  amongst  citizens.  The Constitution  of  India  provides  for  protective discrimination and reservation so as to enable the disadvantaged group to come on the same platform as that of the forward community. If and when a person takes an undue advantage of the  said  beneficent  provision  of  the Constitution  by  obtaining  the  benefits  of reservation  and  other  benefits  provided  under the  Presidential  Order  although  he  is  not entitled thereto, he not only plays a fraud on the society but in effect and substance plays a fraud on  the  Constitution.  When,  therefore,  a certificate  is  granted  to  a  person  who  is  not otherwise  entitled  thereto,  it  is  entirely incorrect  to  contend  that  the  State  shall  be helpless spectator in the matter.

24. We, with respect,  fail  to appreciate the approach of the High Court as it proceeded on the  premise  that  once  the  surname  of  the respondent  tallied  with  the name of the  tribe, which finds mention in one or the other entries of  the  Schedule  appended to  the  1976  Order, the same must be treated to be sacrosanct and no enquiry in relation to the correctness of the said  certificate  can  be  gone  into  by  any committee. The observations and directions of the High Court, in our considered opinion, were not only contrary to the judgments of the Court but also fall short of the ground realities.

25. Mr  Arvind  Savant,  the  learned  Senior Counsel,  would  place  strong  reliance  on  a decision of this Court in Palghat Jilla Thandan Samudhaya  Samrakshna  Samithi and  in particular paras 18 and 19 thereof, which read as under: (SCC p.365)

“18.  These  judgments  leave  no  doubt  that the Scheduled Castes Order has to be applied as it  stands  and  no  enquiry  can  be  held  or evidence  let  in  to  determine  whether  or  not

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some  particular  community  falls  within  it  or outside it. No action to modify the plain effect of  the  Scheduled  Castes  Order,  except  as contemplated by Article 341, is valid.

19.  The Thandan community in the  instant case having been listed in the Scheduled Castes Order  as  it  now stands,  it  is  not  open  to  the State Government  or,  indeed,  to this  Court  to embark upon an enquiry to determine whether a section  of  Ezhavas/Thiyyas  which  was  called Thandan in the Malabar area of the State was excluded  from  the  benefits  of  the  Scheduled Castes Order.”

In  Addl.  General  Manager  –  Human  Resource,  Bharat  Heavy

Electricals Ltd. v.  Suresh Ramkrishna  Burde [(2007) 5 SCC 336], this

Court held:

“14. In the case in hand the respondent got appointment  on  31-5-1982  on  a  post,  which was reserved for a member of Scheduled Tribe. On receiving complaints the employer referred the matter to the District Collector, Nagpur and also to the Scrutiny Committee in March 1991. The  subsequent  period  has  been  spent  in making  enquiry  and  in  litigation  as  the respondent filed three writ petitions. In view of the  principle  laid  down  by this  Court  we  are clearly  of  the  opinion  that  his  services  were rightly terminated by the appellant and the High Court  was  in  error  in  directing  his reinstatement.  The  order  passed  by  the  High Court, therefore, has to be set aside.”

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In  State  of  Maharashtra  &  Ors. v.  Sanjay  K.  Nimje [2007(2)

SCALE 214], it was held that a person cannot get a benefit to which he is

not otherwise entitled to.

28. Our attention has been drawn to the fact that the appellant herein

had filed applications for leave to file two special leave applications; one

against the order dated 26.06.2006 and another against the order dated

11.08.1988.  Whereas leave has been granted and notice had been issued

on 16.04.2007 in the order 26.06.2006, the same has been declined in

respect of the order dated 11.08.1988.   

29. Contention  of  the  learned  counsel  is  that  the  order  dated

11.08.1988 has even been given the stamp of finality by this Court.   

We are unable to accept the said contention.  Apart from the fact

that  the  petition  for  leave  against  the  order  dated  11.08.1988  was

dismissed on the ground of delay alone, the appellant herein is affected

by the impugned judgment of the High Court dated 26.06.2006.  When

the  order  dated  11.08.1988  was passed,  the  judgment  of  the  Bombay

High Court was prevailing.  Appellant was not in picture at that point of

time.   

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A question, furthermore, arises as to whether in a disposed of writ

petition, a separate application was maintainable although cause of action

therefor  arose subsequently.   It  is  urged that  the said  application  was

filed for implementing the earlier order of the court.  It could not be so as

in  the  meantime  the  Caste  Scrutiny  Committee  had  already  taken  a

decision. Subsequent events of grave importance had taken place which

could not be ignored.   

The Central Government had issued circulars.   The Maharashtra

Pollution Control Board had also issued circulars.  Appellant’s claim for

grant of certificate was rejected in the year 1997.  If the respondent No. 1

was aggrieved thereby, he could have filed an appropriate writ petition

before the High Court immediately thereafter.  He did not choose to do

so.  Only when the question of grant of promotion arose, he sought to get

his claim of being promoted as a member of the Scheduled Tribe.   

It was in that sense, it was obligatory on the part of the respondent

No. 1 to question the validity of the circulars issued by the Maharashtra

Pollution Control Board.  A separate writ petition therefor should have

been filed.  The Maharashtra Pollution Control Board as also the Caste

3 3

Scrutiny Committee  was required  to  be impleaded therein.   When the

order dated 11.08.1988 was passed by the High Court, no Caste Scrutiny

Committee  existed.   It  came  into  force  only  after  pronouncement  of

judgment of this Court in Kumari Madhuri Patil (supra).   

The  Maharashtra  Government  also  enacted  the  Maharashtra

Scheduled Caste, Scheduled Tribes, De-notified Tribes (Vimukta Jatis),

Nomadic  Tribes,  Other  Backward  Classes  and  Special  Backward

Category (Regulation of Issuance and Verification of) Caste Certificate

Act, 2000.

We, therefore, reject the said contention.   

30. The  Maharashtra  Pollution  Control  Board  in  its  affidavit

categorically stated that the appointment of the respondent No. 1 cannot

be  treated  to  be   final  as  no  caste  certificate  had  been  issued  by the

Statutory Committee.

31. We must now deal with the question of locus standi.  A special

leave petition ordinarily would not have been entertained at the instance

of the appellant.  Validity of appointment or otherwise on the basis of a

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caste certificate granted by a committee is ordinarily a matter between

the employer and the employee.  This Court, however, when a question is

raised, can take cognizance of a matter of such a grave importance suo

motu.   It  may not  treat  the  special  leave  petition  as  a  public  interest

litigation, but, as a public law litigation.  It is, in a proceeding of that

nature, permissible for the court to make a detailed enquiry with regard

to  the  broader  aspects  of  the  matter  although  it  was  initiated  at  the

instance of a person having a private interest.  A deeper scrutiny can be

made so as to enable the court to find out as to whether a party to a lis is

guilty of commission of fraud on the Constitution.  If such an enquiry

subserves the greater public interest and has a far reaching effect on the

society, in our opinion, this Court will not shirk its responsibilities from

doing so.   

We could  have dismissed this  application  on the simple ground

that the appellant has no locus standi.  We did not do so because as a

constitutional court we felt it to be our duty to lay down the law correctly

so  that  similar  mistakes  are not  committed  in  future.   Apart  from the

general  power of the superior  courts vested in it  under Article 226 or

Article  32 of the Constitution of  India,  this  Court  is  bestowed with a

greater  responsibility  by  the  makers  of  the  Constitution  in  terms  of

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Articles 141 and 142 of the Constitution.  Decisions are galore wherein

this  Court  unhesitatingly  exercised  such  jurisdiction  to  resort  to  the

creative interpretation to arrive at a just result in regard to the societal

and/ or public interest.  We thought that it is a case of that nature.   

32. We  may  notice  that  recently  such  a  legal  principle  has  been

considered by this court in Indian Bank v. Godhara Nagrik Cooperative

Credit Society Ltd. and Another [2008 (7) SCALE 363].  

This Court,  however, while laying down the law suitably mould

the relief so as to do complete justice between the parties.

33. In  Sandeep  Subhash Parate v.  State  of  Maharashtra  and Others

[(2006) 7 SCC 501], this Court in the matter of grant of relief applied the

doctrine of proportionality directing:

“15. We do not find any lack of  bona fides on  the  part  of  the  appellant.  He,  it  will  bear repetition  to  state,  got  admission  in  the professional  course  as  far  back  in  the  year 1998. For about the last three years, he had not been able to receive his degree of Engineering, although,  he  pursued  his  studies  after  he  had passed  class  12th  examination.  Just  like medical education, the State also incurs a heavy expenditure  in  imparting  other  professional

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education like engineering. We, in the peculiar facts  and  circumstances  of  this  case,  are  not inclined  to  go  into  the  question  as  regards purported  commission  of  fraud  by  the appellant,  particularly,  when  the  University admitted  him without  any  demur  whatsoever. We are doing so having regard to the doctrine of proportionality. The appellant has suffered a lot.  He  might  not  be  entirely  responsible therefor. He might have been under a bona fide belief  that  he  comes  within  the  purview  of notified  category.  We,  therefore,  albeit with much  reluctance  accept  the  fervent  and impassionate plea made by the learned counsel appearing for the appellant that he be allowed to obtain the degree. The same shall, however, be subject to payment of Rs 1 lakh in favour of the State of Maharashtra so as to recompense the State to  some extent  the amount  spent  on him  for  imparting  education  as  a  reserved category  candidate.  Such  payment  must  be made within  three months  from this  date.  On filing satisfactory proof of the deposit of such an  amount,  Respondent  4  shall  immediately issue  the  degree  in  his  favour.  The  appellant shall  not  claim any  benefit  flowing  from the caste  certificate  obtained  by him, which  shall stand cancelled.  In future,  for all  purposes he will be treated to be a person belonging to the general category.”

34. In Union of India v. Dattatray S/o Namdeo Mendhekar and Others

[(2008) 4 SCC 612], this Court held:

“5. Milind (supra)related to a Medical College admission.  The  question  that  arose  for

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consideration  in  that  case was whether it  was open  to  the  State  Government  or  Courts  or other authorities to modify, amend or alter the list  of  Scheduled  Tribes  and  in  particular whether the "Halba-Koshti" was a sub-division of 'Halba' Tribe. This Court held that it was not permissible  to  amend  or  alter  the  list  of Schedule Tribes by including any sub-divisions or otherwise. On facts, this Court found that the respondent  therein  had  been  admitted  in medical  course  in  ST category,  more than  15 years back; that though his admission deprived a scheduled tribe student of a medical seat, the benefit  of  that  seat  could  not  be  offered  to scheduled tribe student at that distance of time even  if  respondent's  admission  was  to  be annulled;  and  that  if  his  admission  was annulled, it  will lead to depriving the services of a doctor to the society on whom the public money had already been spent. In these peculiar circumstances, this Court held that the decision will not affect the degree secured by respondent or his practice as a doctor but made it clear that he  could  not  claim to  belong  to  a  Scheduled Tribe. But the said decision has no application to a case which does not relate to an admission to  an  educational  institution,  but  relates  to securing employment by wrongly claiming the benefit  of  reservation  meant  for  Schedule Tribes. When a person secures employment by making a false  claim regarding caste/tribe,  he deprives  a  legitimate  candidate  belonging  to scheduled caste/tribe, of employment. In such a situation,  the  proper  course  is  to  cancel  the employment obtained on the basis of the false certificate so that the post may be filled up by a candidate  who  is  entitled  to  the  benefit  of reservation.”

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We do not intend to do so in this case as the respondent No. 1 is in

service  for  a long time and the Bombay High Court  allowed the writ

petition filed by him way back in 1988.

35. Invoking our jurisdiction under Article 142 of the Constitution of

India, keeping in view the long history of the case and its backdrop, we

are of the opinion that whereas it would not be proper for us to disturb

the very appointment  of the appellant  but  it  must be declared that  his

appointment shall be treated to be that of a general category in the matter

of promotion or otherwise.  He shall not be eligible to get any benefit as

a member of a Scheduled Tribe.   

36. For  the  reasons  aforementioned,  the  appeal  is  allowed  with  the

aforementioned directions.   In the facts and circumstances of the case,

there shall be no order as to costs.

………………………….J. [S.B. Sinha]

..…………………………J. [Aftab Alam]

New Delhi; August 29, 2008   

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