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CASE NO.: Appeal (civil)  3633 of 2006

PETITIONER: Sandeep Subhash Parate

RESPONDENT: State of Maharashtra & Ors.

DATE OF JUDGMENT: 24/08/2006

BENCH: S.B. Sinha & Dalveer Bhandari

JUDGMENT: J U D G M E N T (Arising out of SLP (C) No. 9735/2005)

S.B. Sinha, J.

       Leave granted.

       The appellant claims himself to be a member of ’Halba’  community.  ’Halba’ is a Scheduled Tribe.  He obtained admission in  the courses of Bachelor of Engineering (Instrumentation Engineering)  in Pune University, (Respondent No.4), claiming himself to be  belonging to ’Halba’ a Scheduled Tribe community.  According to the  appellant, the question as to whether ’Koshti-Halbas’ are members of  Scheduled Tribe or not had been authoritatively decided for the first  time in State of Maharashtra vs. Milind & Ors. [(2001) 1 SCC 4] and  in that view of the matter, he had represented himself to be a member of  Scheduled Tribe.  Drawing our attention to the fact that even in Milind  (supra), this Court directed that those, who have completed their  courses from the universities, should be allowed to obtain degrees and  get the benefit thereof as general candidates, the appellant was also  entitled to a similar relief.   

Indisputably, the Caste Scrutiny Committee constituted in terms  of the decision of this Court in Kumari Madhuri Patil & Anr. vs.  Additional Commissioner, Tribal Development & Ors. [(1994) 6  SCC 241] invalidated the caste certificate granted in favour of the  appellant.  In the writ petition filed by him thereagainst, an interim  order was passed in his favour, in terms whereof he obtained admission  in the course of Bachelor of Engineering (Instrumentation Engineering)  in the Government Engineering College, Pune, which is affiliated to the  respondent No.4-University.  The High Court allowed the writ petition  and remitted the matter back to the Scrutiny Committee.  His claim was  rejected by the Scrutiny Committee by an order dated 30th September,  2002.  In a writ petition filed by him before the Nagpur Bench of the  Bombay High Court questioning the said order of 30th September, 2002,  no interim relief was granted, but, the appellant continued with his  studies.  The said writ petition was dismissed for default, but, it was  restored.  He completed his studies in the year 2004.  He appeared at  the examination.  An application was filed by him for a direction to  respondent No.4-University to supply him the degree along with the  marksheet.  However, in the meantime, the writ petition itself was  dismissed on merits.  Thus, no order was also passed on the said  application.  The review application filed by the appellant herein has  been dismissed by the High Court by reason of the impugned order.  

The learned counsel appearing on behalf of the appellant merely  urged that this Court may issue a direction to the University to grant

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him the degree as he has completed his courses of studies in the  meantime.  

       Mr. Ravindra Kumar Adsure, learned counsel appearing on  behalf of the State and Mr. Makrand D. Adkar, learned counsel  appearing for respondent No.4-University, however, submitted that the  appellant has not made out any case for obtaining any relief from the  High Court having failed to show his bona fide.                 It was urged that as the appellant has played fraud on the  statutory authorities, he is not entitled to any equitable relief.  Reliance  has been placed on Bank of India & Anr. vs. Avinash Mandivikar &  Ors. [(2005) 7 SCC 690] and Ram Saran vs. I.G. of Police, C.R.P.F.  & Ors. [2006 (2) SCALE 131].   

It now stands admitted that the appellant did not belong to  ’Halba’ community.  He was a Koshti.  On verification of his caste  certificate the Vigilance Cell found that his school records clearly  showed that the appellant belonged to the Koshti community.   

The question as regards invalidation of caste certificate came up  consideration before this Court in Kumari Madhuri (supra), wherein  this Court directed the Central Government and the State Governments  to constitute Caste Scrutiny Committees to go into such issues as and  when they arise for consideration.  Indisputably, a finding of fact has  been arrived at by the Caste Scrutiny Committee against the appellant  negativing his claim that he is a member of Scheduled Tribes.   However, the fact remains that he got himself admitted in view of an  interim order passed by the High Court.  Indisputably, the question as to  whether ’Koshti-Halbas’ are members of Scheduled Tribe or not was  authoritatively answered only in Milind (supra), which was decided on  28th November, 2000, wherein it was observed :    

"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 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."   

Yet again in R. Vishwanatha Pillai etc. vs. State of Kerala &  Ors. etc. [(2004) 2 SCC 105], a Three Judge Bench of this Court had  the occasion to deal with a similar issue.  Following Milind (supra),  this Court held:

"In this case we find that the appellant had  joined Regional Engineering College in the year  1992.  He completed the course of his studies in  the year 1996 under the interim orders of (sic the  High) Court which were subject to the final orders  to be passed in the writ petition.  No purpose

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would be served in withholding the declaration of  the result on the basis of the examination already  taken by him or depriving him of the degree in  case he passes the examination.  In terms of the  orders passed by the Constitution Bench of this  Court in State of Maharashtra v. Milind we direct  that his result be declared and he be allowed to  take his degree with the condition that he will not  be treated as a Scheduled Caste candidate in future  either in obtaining service or for any other benefits  flowing from the caste certificate obtained by him.   His caste certificate has been ordered to be  cancelled.  Henceforth, he will be treated as a  person belonging to the general category for all  purposes."

A different opinion, however, was struck in Bank of India &  Anr. vs. Avinash D. Mandivikar & Ors. [(2005) 7 SCC 690], wherein  a Two Judge Bench of this Court distinguished Milind (supra) and      R. Vishwanatha Pillai (supra) stating that protection given therein  cannot be extended to an employee of a Bank and, thus, the factors  which weighed with this Court cannot be applied to the respondent  therein.  The Court observed that in any event, if Respondent No.1 had  played fraud, he should not be allowed to get the benefits thereof.  The  same learned Judge in Ram Saran (supra) held that leniency should not  be shown to a person who admittedly committed forgery.   

The issue again came of up consideration in LIC of India vs.  Sushil [(2006) 2 SCC 471], wherein this Court remitted the matter back  to the High Court observing that :

"Before us it was urged on behalf of  Respondent 1 that in the State of Maharashtra at  the relevant time there were  resolutions/government orders which made the  respondent believe that there was no fraudulent  intention in claiming to be Halba.  Mr. Lalit,  learned counsel for the respondent submitted that  none of these aspects (including various GRs) have  been considered.  The High Court in the present  case proceeded on the basis as if mere filing of an  undertaking in the line suggested by the writ  petitioner was sufficient to bring the case under the  umbrella of the decision in Milind case.  That is  clearly not so. As the High Court has not considered the  matter in its proper perspective, except relying on  Milind case we think it appropriate to remit the  matter to the High Court for a fresh consideration  on merits of the case on the grounds, if any,  without being influenced by any observation in  this order."

 Some peculiar characteristics exist in this case:

1)      The appellant competed his substantial tenure as a  student under the interim orders passed by the High  Court. 2)      No opportunity of hearing was given to him by the  Scrutiny Committee at the first instance and his first  writ petition was allowed. 3)      Although, in the second writ petition, he could not  obtain any interim order, yet he was allowed to  continue his studies without any demur by the State and  University authorities.

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4)      He filed an application after completion of his studies  that respondent No.4-University should be directed to  issue to him the degree of Bachelor of Engineering. No  order was passed thereupon. 5)      A review application was filed on the basis that the  Bench did not take into consideration the decision of  this Court in Milind (supra).   

A person indisputably is not entitled to a relief only because an  interim order was passed in his favour, but the premise on which such  an interim order was passed would assume some significance in the  instant case in so far as a presumption may be drawn that prima facie  the appellant was not considered guilty of commission of fraud and the  possibility that the question in regard to his status as a member of  Scheduled Tribe as the issue as to whether ’Koshti-Halbas’ were  members of Scheduled Tribe had not been finally determined, was in  the mind of the court.  {See for example, Employees State Insurance  Corporation vs. Distilleries & Chemical Mazdoor Union & Ors.  [2006 (7) SCALE 171].}  The appellant took his admission in the year  1998, i.e., prior to the decision of this Court in Milind (supra).  It is true  that he had obtained his admission in a professional institution not  purely on the basis of his merits but on the basis that he belonged to a  reserved category.  It is also true that thereby he might have deprived a  genuine student of reserved category from obtaining admission, but, in  a case of this nature, what is necessary to bear in mind is the bona fide  or otherwise of the appellant.  He might not have semblance of right as  was observed by the High Court but as the learned counsel for the  appellant states that he might have been under a bona fide belief that  Koshti-Halbas were members of a Scheduled Tribe.   

It is not in dispute that the Bombay High Court held so.   However, as it appears from the decision of this Court in LIC (supra)  that the State might have also issued some Government orders making  such declaration.  Indisputably, the conduct of a party assumes  significance in moulding the relief.  This court, while exercising its  discretionary jurisdiction and to do complete justice between the parties  in terms of Article 142 of the Constitution of India, must consider all  relevant aspects of the matter, including the decisions of this Court.   The doctrine of proportionality emerging from the recent trend of  decisions in preference to the doctrine of Wednesbury unreasonableness  is also a factor which weighs with us.  {See Teri Oat Estates (P) Ltd.  vs. U.T., Chandigarh & Ors. [(2004) 2 SCC 130] and A. Sudhakar  vs. Post Master General, Hyderabad & Anr. [2006 (3) SCALE  524].}      

We do not find any lack of bona fide 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 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 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 plan 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.  

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Such payment must be made within three months from this date.  On  filing satisfactory proof of the deposit of such an amount, the  respondent No.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.  

The appeal is allowed to the extent mentioned hereinbefore and  on the aforementioned terms.  No costs.