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CASE NO.: Appeal (civil)  231 of 2007

PETITIONER: State of Maharashtra & Ors

RESPONDENT: Sanjay K. Nimje

DATE OF JUDGMENT: 16/01/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T (Arising out of SLP(C) No. 6581 of 2006)

S.B. Sinha, J.          

       Leave granted.

       This appeal is directed against a judgment and order dated 19.08.2005  passed by a Division Bench of the High Court of Judicature of Bombay in  Writ Petition No. 4158 of 2005 whereby and whereunder the writ petition  filed by the respondent herein was allowed.         Respondent was appointed in the services of the Government of  Maharashtra on 29.06.1995.  Respondent claimed to be belonging to Halba  community, a scheduled tribe.  The caste certificate procured by the  respondent from the competent officer having been doubted, the matter was  referred to the Caste Certificate Scrutiny Committee, Nagpur on 27.08.1999  for verification.  The respondent was found to be belonging to ’Koshti’ caste  which comes within the category of  ’special backward class’ and not within  the scheduled tribe category.

       The question as to whether ’Koshti \026 Halbas’ are members of the  Scheduled Tribe or not came up for consideration before this Court in State  of Maharashtra v. Milind and Others [(2001) 1 SCC 4], wherein it was held  that they were not.

       In view of the finding of fact that the respondent herein was not a  member of the scheduled tribe but was a ’Koshti’, his caste certificate was  invalidated by an order dated 24.06.2004.   

       A writ petition thereafter was filed by the respondent before the High  Court praying inter alia for the following reliefs: "A)     That by passing a suitable writ, order or  direction in the nature of mandamus or certiorari or  any other appropriate writ, order or direction, a  quash and set aside the order \005dated 24.6.2004  passed by the Respondent No. 2 Committee  invalidating the tribe claim of Petitioner that he  belongs to Halba, Scheduled Tribe.

B)      It be held and declared that in view of  Government Resolutions dated 15.6.1995 and  30.6.2004 the services of Petitioner’s are liable to  be protected thereby issuing such order to the  Respondent No. 2 and 3.

C)      During the pendency of present petition by

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passing an order ad interim in nature stay the  effect, operation and implementation of the order  \005dated 24.6.2004 invalidating tribe claim of  Petitioner and/ or in the alternative restrain the  Respondents No. 1 and 3 from passing any adverse  order consequent upon invalidation of tribe claim  of petitioner by Respondent No. 2 Committee."

       It appears that the respondent accepted the findings of the Caste  Scrutiny Committee.  However, relying on or on the basis of a purported  government resolution dated 15.06.1995 whereby and whereunder the  services of persons who were appointed prior thereto were sought to be  protected, the Division Bench of the High Court by reason of the impugned  judgment directed that although the respondent was appointed on  29.06.1995, having regard to the fact that he had been selected on  15.06.1995, he was entitled to protection in terms of the said resolution  stating: "5.     In the present case the Petitioner was  selected on 15th June, 1995 and got the  appointment order on 29th June, 1995.  Since  Maruti Sandipan Jadhav the Petitioner in Writ  Petition No. 422 of 1997, is entitled to get the  benefit under the Government Resolution dated  15th June, 1995 the same principle should be  applied to the Petitioner in the present petition.

6.      In the result, the petition is allowed.  The  impugned order of dismissal dated 27th May 2005  is quashed and set aside.  The Respondents are  directed to reinstate the Petitioner with continuity  of service but without back wages and to  regularize his service in the light of the  Government Resolution dated 15th June, 1995\005"

       Mr. S.S. Shinde, learned counsel appearing on behalf of the  appellants, would submit that having regard to the decision of the Caste  Scrutiny Committee, the impugned judgment cannot be sustained  particularly in view of the fact that he was appointed on 29.06.1995.

       Mr. Manish Pitale, learned counsel appearing on behalf of the  respondent, on the other hand, would submit that in a case of this nature and  particularly in view of the fact that the question as to whether ’Koshti- Halbas’ are the members of the scheduled tribe or not had authoritatively  been pronounced only in Milind (supra); this Court may protect the services  of the respondent.  Reliance in this behalf has been placed in a similar case  in Civil Appeal No. 3375 of 2000 decided on 12.12.2000, which is in the  following terms:

"The appellant having belonged to Koshti caste  claimed to be included in the scheduled tribe of  Halba and obtained an appointment as Assistant  Engineer.  When his appointment was sought to be  terminated on the basis that he did not belong to  scheduled tribe by the Government a writ petition  was filed before the High Court challenging that  order which was allowed.  That order is questioned  in this appeal.  The questions arising in this case  are covered by the decision in State of Maharashtra  Vs. Milind & Ors. 2000 (7) SCALE 628 and was  got to be allowed, however, the benefits derived  till now shall be available to the appellant to the  effect that his appointment as Assistant Engineer  shall stand protected but no further.  The appeal is  disposed of accordingly."

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        Indisputably, the State of Maharashtra enacted "Maharashtra  Scheduled Castes, 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 (for  short "the 2000 Act").  Section 6 of the 2000 Act laid down the procedure  for the verification of caste certificate.  Section 7 thereof provides for  confiscation and cancellation of a caste certificate in the event the same  appears to be false.  Section 10 provides for withdrawal of the benefits  secured on the basis of the false caste certificate in the following terms:

"10. Benefits secured on the basis of false Caste  Certificate to be withdrawn. \026 (1) Whoever not  being a person belonging to any of the Scheduled  Castes, Scheduled Tribes, De-notified Tribes,  (Vimukta Jatis), Nomadic Tribes, Other Backward  Classes or Special Backward Category secures  admission in any educational institution against a  seat reserved for such Castes, Tribes or Classes, or  secures any appointment in the Government, local  authority or in any other Company or Corporation,  owned or controlled by the Government or in any  Government aided institution or Co-operative  Society against a post reserved for such Castes,  Tribes or Classes by producing a false Caste  Certificate shall, on cancellation of the Caste  Certificate by the Scrutiny Committee, be liable to  be debarred from the concerned educational  institution, or as the case may be, discharged from  the said employment forthwith and any other  benefits enjoyed or derived by virtue of such  admission or appointment by such person as  aforesaid shall be withdrawn forthwith.            (2) Any amount paid to such person by the  Government or any other agency by way of  scholarship, grant, allowance or other financial  benefit shall be recovered from such person as an  arrear of land revenue.           (3) Notwithstanding anything contained in  any Act for the time being in force, any Degree,  Diploma or any other educational qualification  acquired by such person after securing admission  in any educational institution on the basis of a  Caste Certificate which is subsequently proved to  be false shall also stand cancelled, on cancellation  of such Caste Certificate, by the Scrutiny  Committee.         (4) Notwithstanding anything contained in  any law for the time being in force, a person shall  be disqualified for being a member of any statutory  body if he had contested the election for local  authority, Co-operative Society or any statutory  body on the seat reserved for any of Scheduled  Castes, Scheduled Tribes, De-notified Tribes  (Vimukta Jatis), Nomadic Tribes, Other Backward  Classes or Special Backward Category by  procuring a false Caste Certificate as belonging to  such Caste, Tribe or Class on such false Caste  Certificate being cancelled by the Scrutiny  Committee, and any benefits obtained by such  person shall be recoverable as arrears of land  revenue and the election of such person shall be  deemed to have been terminated retrospectively."

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       The Caste Scrutiny Committee was initially constituted in terms of the  decision of this Court in Kumari Madhuri Patil & Anr. v. Additional  Commissioner, Tribal Development & Ors. [(1994) 6 SCC 241].  The  Committee which was now constituted in terms of the 2000 Act issued a  notice upon the respondent.  He was given an opportunity of hearing.  The  principles of natural justice had, thus, been complied with.  The Caste  Scrutiny Committee opined that the respondent failed to prove that his socio- cultural traits, characteristics, festivals and customs match with those of  Halba, Scheduled Tribe community.  It was found that the father of the  respondent himself had given details of his family tree as also socio-cultural  traits which categorically showed that the respondent was not a member of  the Scheduled Tribe community.  Even the primary school leaving certificate  of the respondent’s father clearly showed that they belonged to ’Koshti’.  It  was ordered:

"After considering all the documents and facts and  in exercise of the powers vested vide Government  Resolutions quoted in the preamble at Sr.No.1, the  Caste Scrutiny Committee has come to the  conclusion that Shri Sanjay Krushnarao Nimje  does not belong to the Halba Scheduled Tribe  hence his claim towards the same is held invalid.   His caste certificate granted by the Executive  Magistrate, Nagpur vide R.C.No.287/MRC-81/88- 89, dated 1.9.88 is hereby cancelled confiscated."

       It is accepted that an undertaking was filed by the respondent  accepting the order passed by Appellant No. 3 \026 Committee before the High  Court in the following terms:

"The Petitioner is filing this pursis/undertaking  that he accepts the order passed by the Respondent  No.2 Scrutiny Committee and further undertakes  that he or his legal heirs/progeny will not claim  any benefit as a schedule Tribe Candidate either in  education or in employment.

In view of the Government Resolution dated  15.6.1995 and the judgment of this Hon’ble Court,  filed along with this petition as Annexure T, the  services of the Petitioner be protected and he may  be continued in service by giving specific  directions to the Respondent employer."

                Indisputably, on 7.12.1994, ’Koshtis’ were declared to be as Special  Backward Class category.  By reason of the said Government Resolution  dated 15.06.1995, it was directed:

"The reservation as aforesaid given to Special  Backward Class category is applicable to direct  recruitment and promotions and the Creamy layer  criteria is not applicable to this category.  The  persons from this category who have entered into  service and has obtained promotion on the basis of  Schedule Tribe Certificates, they should not be  reverted or terminated from service."

       Respondent admittedly was appointed on 29.06.1995.  Although he  might have been selected on 15.06.1995, ex facie, the said Government  Resolution dated 15.06.1995 would have no application in his case.

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       Once the respondent became disentitled to obtain the benefit of the  said Government Resolution dated 15.06.1995, the 2000 Act will apply in  his case.

       The 2000 Act being a legislative Act would prevail over any  Government Resolution.  A Government Resolution may be beneficient in  nature but it is well-settled that a benefit under a Government Resolution  cannot be extended to a person who does not satisfy the conditions precedent  thereof.

       In any event, the effect of the judgment of this Court as also the  provisions of a statute in the light of the constitutional provisions contained  in Articles 341 and 342 of the Constitution of India cannot be diluted by  reason of a Government Resolution or otherwise.

       The extent of jurisdiction of the Caste Scrutiny Committee came up  for consideration before this Court in State of Maharashtra and Others v.  Ravi Prakash Babulalsing Parmar & Anr. [2006 (10) SCALE 575 : 2007 (1)  SCC 80] wherein this Court categorically held that the Caste Scrutiny  Committee has the requisite jurisdiction in relation thereto,  stating:

"The makers of the Constitution  laid emphasis on  equality amongst citizens.  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."

       We may also notice that ordinarily a person, who has obtained  appointment on the basis of a false certificate, cannot retain the said benefit.   [See Bank of India and Another v.  Avinash D. Mandivikar and Others,  (2005) 7 SCC 690, Ram Saran v. I.G. of Police, CRPF & Ors. 2006 (2)  SCALE  131 and The Superintendent of Post Offices & Ors. v. R. Valasina  Babu, Civil Appeal No. 5868 of 2006, disposed of on 14.12.2006]

       In a situation of this nature, whether the court will refuse to exercise  its discretionary jurisdiction under Article 136 of the Constitution of India or  not would depend upon 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 & Ors. [2006 (8) SCALE 503]

       From the order of the Caste Scrutiny Committee itself, it is evident  that the father of the respondent was shown in the primary school register as  belonging to ’Koshti’ caste.  They were not members of Scheduled Tribe.   They were not even ’Koshti-Halbas’.  It may be true that an authoritative  pronouncement in this behalf came for the first time in Milind (supra), but it  is not a case where the respondent pleaded and proved bona fide.

       Respondent was not the member of a tribe.  If a person is not a  member of a tribe, the question of the said tribe being a scheduled tribe  would not arise.

       Thus, it is a clear case where the provisions of the 2000 Act would

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apply.  We see no reason as to why the statutory provisions should not be  directed to apply in the instant case.  It may be that at one point of time,  keeping in view of the stand taken in particular case, some indulgence had  been shown.  Indulgence might have been shown to the students or who  were found to have acted bona fide but the same would not mean that this  Court would pass an order contrary to or inconsistent with the provisions of  a legislative act.

       Our attention was drawn to an order dated 12th December, 2000  passed in Civil Appeal No. 3375 of 2000, but it does not appear the  provisions of the 2000 Act had been brought to the notice of this Court  therein.  Furthermore, we are not aware as to the fact involved therein and,  thus, the same cannot be treated to be a precedent.

       For the reasons aforementioned, the impugned judgment cannot be  sustained, which is set aside accordingly.  The appeal is allowed.  In the  facts and circumstances of the case, however, we make no order as to costs.